Summary of International Law - Henriksen

Summary of International Law - Henriksen - 1st edition


What are the foundations and structure of international law? - Chapter 1 (1)

1.1 Introduction

The scope of international law as a legal system, are all issues that concern more than one state. Where national law is primarily concerned with the interaction between individuals and individuals and the state, international law is concerned with the interaction between states. Although international law is often associated with big issues, such as war crimes, fighting climate change and international agreements, the scope is actually much wider and it may be hard to find things to which it does not apply.

What is the relation of international to national law?

As a legal system international law is quite different than most national legal systems. For example, in international law there is no legislative or executive branch. It is mostly up to national states to implement and interpret the international law.

1.2 What is the history of international law?

The early origins of international law can be found in the informal rules and common practices countries abided by when they were engaging in cross-country trade. These traditions, rules, practices and “ways of doing things”, where necessary to ensure predictability in international relations. We can trace the current state of the law back to Europe in the late Middle Ages (between the 15th and 16th centuries). At the very start this was mostly on the basis of religious considerations enforced by the Catholic Church.

What is natural law?

In this time normative ideas could be mostly traced back to natural law (jus naturale), a holistic set of ideas about natural and social life in the entire world. Jus naturale was considered inferior to jus gentium, the law between people. At the same period there was a significant increase in colonialism and the Spanish conquistadores were considered to be subject to natural law. In the 17th and 18th centuries more of the current structures of international law were formed, most notably by several publications and suggested treaties. The actual birth of national law is often traced back to the Peace of Westphalia (1648) that brought an end to a long war. Order and structure was re-established in an otherwise unorderly Europe. As a general idea, this was an effort to limit the power of empires and reduce powers to smaller areas. In this process Westphalia is considered to be essential. Natural law was an idea used to diminish the overall chaos: thinkers like John Locke (1632-1704), Thomas Hobbes (1588-1679) and the lawyer Jean Bodin (1530-1596) introduced the idea that there is one sovereign only accountable to God who can break laws at his own discretion.

What is the relation to war?

These ideas were later used as a basis for e.g. the Declaration of Paris, which set a legal limit on the capture of private property at sea and the Declaration of St.Petersburg which prohibited the use of explosive bullets. The early start of international law as we know it now is related to colonialism and war. After the First World War The League of Nations was installed by the US to maintain world peace. In 1928 the Treaty of Paris attempted, unsuccessfully, to outlaw war. True achievements of international law were made in the period after the Second World War. The reaction of the world to the crimes of the Nazis was an important precedent of what was to come.

What is the United Nations?

The League of Nations was replaced by the United Nations, which is based on Westphalian principles. By means of the Charter of the United Nations, maintaining peace became an international effort. The Security Council is responsible for enforcing these principles, if needed with force. The UN was highly involved with the worldwide decolonization process. The UN furthermore installed the International Court of Justice (ICJ), the IMF, the World Bank and the General Agreement on Tariffs and Trade (GATT). Furthermore, the UN expanded with ‘sister organizations’ such as the NATO (a response to soviet threat).

Participation in the UN is particularly high in European countries, which has a general trend towards strong unification. With institutions like the European Court of Justice and the European Commission. Another institution, the Council of Europe installed an important treaty: the European Convention of Human Rights (ECHR). All these treaties have led to a steady decrease in conflicts. Although recently there has been plenty of critique on the costs this bears to national sovereignty, the Brexit is sometimes seen as a direct result of this complaint.

1.3 What is the structure of international law?

The Westphalian agreement is considered to have such high importance because it is on of the first systems that recognizes the equal legal status of different national actors. The very concept of the state serves as a compliment to where national laws do not suffice, the function as a residual legal system. For example when there is a conflict between two different national laws. Such a conflict may be due to content or form. International law is predominantly compliance based

What is the international law of coexistence?

The legal structure is a horizontal one, it is mainly concerned with the way in which sovereign states interact. At first glance, international law may seem to be a cause of friction towards the desire of state sovereignty. In practice, however, the aim of international law is to facilitate this sovereignty by preventing international turmoil. It should be noted that the aim of international law is not to achieve community goals, such as fairness, but rather to uphold the order on a global scale and to ensure stability. As such it enables states to peacefully pursue their separate goals and interests. In this process there is always law creation taking place to some extent.

International law of cooperation

Certain issues do not become an issue under international law because of colliding interests but become a matter of law because of a treaty. An example is the way in which states pursue societal goals such as human rights, these are enforceable under international human rights legislation even if a neighbouring state is not directly affected.

1.4 What is the basis of international obligation?

Two streams of thought can be distinguished: natural and positive law. Natural law is concentrated on the binding force of international law, the nature requires certain behavior, which should be enforced. At first glance, there seems to be an inherent clash within this theory between state sovereignty and accountability. However, as discussed earlier positive constraints may actually increase freedom and therefore also sovereignty. In practice, states never truly question whether they are bound by international law. Positive law puts its focus on voluntary compliance.

1.5 What is the relationship between national and international law?

Although international law stands, by principle, above international law there is a level of discretion as to how states comply with the international law. An exception to this rule is EU law which generally leaves less discretion to its Member States. A state cannot defend itself by saying that compliance would negate the national law. In the application and enforcement of international law on a national level two legal theories are important: monism and dualism. Monism means that the national and international law form one coherent set of legal rules, whereas dualism states that they are separate systems. Following dualism, international law therefore needs to be transposed into national law to become enforceable. How this is done depends on a state’s constitution. Generally, but not necessarily, international law is incorporated in the national legal system. In the UK this is required in the US it is not.

1.6 How is international law enforced?

A central issue is that there is no international police force to enforce international law. There are, however, several monitoring bodies: the CJEU and the ECtHR. These bodies are endowed to make binding decisions. Nevertheless actual enforcement can be problematic. One way to solve this problem is to take collective action, such as the sanctions in response to the annexation of the Crimea by Russia. Other tools can be cancelling state visits, halting state aid or to ban trade with a country. As a whole, the real enforcement tools on an international level are limited, nevertheless mostly because of reciprocity states rarely disobey the international law.

1.7 Is international law an inadequate tool in the 21st century?

On the other side of the trade-off between state sovereignty and international law there is the discussion of the adequacy of international law to achieve global goals such as combatting poverty, ensuring fairness and achieving ‘justice’. However, the international law was never established to reach these goals. It was introduced to ensure international order and stability. These considerations usually gain priority over goals of fairness or justice. Recent humanitarian interventions that happened without the aid of the UN imposed a serious threat to international peace. The ‘Westphalian way’ (where the state has a central role) of organizing the current international legal system is of course not the only way to do things. Other ways could be to place ethnicity or religion in a more central role or even to install a global government. Overall, although the current system has its weaknesses there is some consensus that there currently is no better option.

What are the sources of international law? - Chapter 2 (1)

2.1 Introduction

In essence the sources of the international law provide us with answers on issues that cannot be answered by means of national law. Usually there is no problem to find sources in answering legal questions that lawyers may encounter in international questions. What is a challenge, however, is that there is no clear hierarchy within the different sources of international law and a different structure of international bodies. International law is not a centralized system, but a set of overarching rules.

Political vs ethical norms

Within the sources of international legislation we can distinguish between those that are political and those that are more ethical of nature. Proponents of natural law look at international sources of law in search of guidelines and rules for justice. Whereas proponents of positive law, positivists, are focused more on state will. The distinction is that, a natural law proponent will require more explicit laws, whereas a positivists looks more towards intention.

2.2 What is the importance of Article 38?

Article 38 is a statute of the International Court of Justice (ICJ), its function is to state the sources of international law:

  1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

    1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

    2. International custom, as evidence of a general practice accepted as law;

    3. The general principles of law recognized by civilized nations;

    4. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

  2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

This article bears a lot of resemblance to the article of its predecessor, the Permanent Court of International Justice (PCIJ). Article 38 is mainly aimed at the Court but can be seen as a general guideline, it makes a distinction between two sources of law:

  • Primary law;

  • Secondary law.

Primary law consists of conventions (treaties), principles and customary law. The second source consists of scientific contributions and legal precedent. Another manner of distinguishing is that the first three principles are law creating, whereas the last two are law identifying.

2.3 What is the position of conventions (treaties)?

A convention is the most direct source of international law, it is the primary way to establish a legal relation between two or more countries. The legal basis for such a treaty or convention is consent. Although consent is not a necessary condition for international legal obligations it is decisive in treaty law. The obligation resulting from this consent is called the pacta sunt servanda principle. A convention bears a lot of resemblance to a contract. If this ‘contract’ is closed between to countries it is called a bilateral treaty. If it involves more states it is called a multilateral agreement. A bilateral agreement often enables countries to pursue a mutual interest like improving infrastructure. A multilateral treaty is closer to the process of law-making and are more general in nature. If the treaty or convention is concerned with setting up an international institution this is called a constituent treaty. The binding force of EU legislation is therefore constituency based.

2.4 Does custom have a role as a source of international law?

“The way things are done” is usually an important source of laws. In international law the role of customs is even more important because there is no central law making institution. Customary law, is however, quite controversial as source of international law. International customary law arises when a particular manner of acting is:

  • Considered to be a customary way of behaving between states;

  • Accepted by both countries as legally binding.

In principle all states are bound by international customary law, unless a certain state did not play a role in forming this law. By its nature, and recognized by the ICJ, international customary law can be limited to a certain region, limited to the practice between a set of countries.

Objective element-state practice

Essentially, what happens is that a certain (set of) custom(s) becomes legally binding. Before this happens consistent repetition of a particular behavior between states is required. But what are state acts? Internal documents within a state do not count as a state act. State practice can be divided into three elements:

  • Consistency, a practice should be reasonably uniform and constant. Historically an example of this is free passage of Portugese citizens by the rulers of India.

  • Duration, a certain length of time is required to consider a certain behavior as a custom. Usually this means years of repeated behavior. However, this is not a necessary requirement. Consistency and representation are usually more important. Under some circumstance instant custom can be formed. An example is the reaction to 9/11 in the United States. The custom in this case is that states ‘instantly’ accepted that article 51 of the UN Charter could be violated by non-state actors.

  • Generality, a practice should include the majority of states. This is considered to be the hardest element to establish, because special attention should be paid to states whose ‘interest are specially affected’. As such, weight should be attributed not only to the amount of states affected but also to which states are affected.

A state can evade international customary law by persistently objecting to a certain practice. Norway for example has always opposed the ten-mile rule for the closing line of bays. This is limited, however, to either new or emerging customary law and is not applicable to jus cogens (see 2.9).

Opinio juris

The state practice is only legally binding if it is accepted as law, the requirement of opinion juris sive necesitatis. The rationale of this requirement is that it is considered important to make a distinction between those acts meant to honor a legal obligation and acts that are not. Of course this requirement is subjective and up to debate. How can we establish the intention of states? In practice the opinion juris is only used if there is a reason to believe there are non-legal motivations. I.e. usually the objective element suffices. As such if there is controversy and reason to believe that a conduct has non-legal motivations, proving opinion juris is necessary. This subjective element becomes important if certain customs are broken and as a result there is a consideration to replace current customs.

What is the relationship between custom and treaty law?

Treaty-based obligations can in some situations be identical to customary international law. Also, the rules under a certain treaty can after a certain period of time(duration) turn into customary law. In some cases this will develop into customary law that is internationally binding, in other cases it is limited to the parties accounted for in the treaty. In cases of conflict between customary and international law that are not reconcilable, it is of course relevant to ask the question which law will prevail. As will become clear later, if any of the norms has a jus cogens (pre-emptory) character, it will prevail. However, in most cases the lex posterior principle will be applied. The norm which was introduced last prevails. If one of the two is more specialized, following the lex specialis principle that norm will prevail. Lastly, a customary norm can be used to adjust a treaty-based rule.

2.5 What is the role of general principles as a source of law?

The third source of law are those of general principle. The ICJ hardly ever refers to general principles of law, however, they are general necessary to find answers to the legal questions that surpass domestic law. The function of these principles is to fill the gap that is not covered by treaties and custom. It serves a role in cases with a shortage of applicable law, non liquet. Only those principles that are recognized by civilized nations suffice. The most important example of a general principle of law is equity. This principle is an established general principle in international law. The Court has for example referred to the equity principle when dividing the continental shelf between Denmark, West Germany and the Netherlands.

Another general principle is that of good faith, the state must behave honestly in fulfilling its global/international obligations. Furthermore, the Court stated in an opinion that the ‘elementary considerations of humanity’ could be recognized as a general principle.

2.6 Judicial decisions

Following article 38(1)(d) to article 59 of the Statute, decisions of the ICJ are only binding to the parties to the case. Nevertheless, in practice its judgments carry substantial interpretative weight and there is a thin line between the development of law and the interpretation of law. Of course the institute tries to maintain consistency through its judgments, but it is by no means bound by earlier decisions. Other relevant courts in terms of judicial decisions are the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). As for customary international law, municipalities can play a role as well.

2.7 What is the influence of scholars and the ILC?

Of all the listed sources in article 38(1) the contributions of scholars is the least important. Although historically scholars played an important role, this is steadily decreasing and the ICJ hardly if ever refers to academics. Naturally, the law may be influenced by scholars indirectly through their influence on lawyers. On the other side of the spectrum there is ILC (the International Law Commission). Through its members all the major legal systems around the world are represented and it has a significant influence through proposals, draft conventions and opinion pieces. It is an important body in the development of international law.

2.8 What is the role of unilateral statements in international law?

Unilateral statements can create obligations under international law. The form of these statements is not necessarily of relevance, orally or written statements both suffice. Several case law examples exists where the Court has held a country to its unilateral statements and found them to be legally binding on the condition that the statement is clear and specific.

2.9 What is the hierarchy of sources in international law?

Where constitutional norms have a higher status than legislation and administrative regulation in national legislation. The international system is a system without a clear hierarchy. As such it is a more horizontal system than national law. All legal sources have the same status, with the exception of the distinction between primary and secondary law (as discussed before). Some priority is given of treaties over customary international law but this is not always true.

  1. The general rule it is thus assumed that all sources have the same normative quality. In practice, there are of course exceptions to this rule. The Vienna Convntion on the Law of Treaties (VCLT) is an example of jus cogens norm(peremptory) from which no deviation is allowed. Genocide and torturre are practical examples of peremptory norms.

  2. The second exception to the general rule is, the erga omnes obligation. These are obligation not to one state only but to the international community. Erga omnes norms in practice have a jus cogens character.

  3. The third in the categories of exceptions are obligations under the UN Charter. These obligations will prevail in any conflict above other obligations under international law, follow article 103 of the Charter even if in conflict with another obligation. Furthermore, article 25 of the Charter obliges states to carry out decisions and obligations of the Security Council. Recently, in 2008, the CJEU held that all decisions by the Security Council are to be in line with fundamental rights.

2.10 What is the role of non-binding commitments and soft law instruments?

An important part of law is the creation of behavioral norms that have a non-legally binding nature. Legally binding norms are referred to as ‘hard law’, whereas non-legally binding norms are referred to as soft law’. Soft law is predominantly important in environmental law (see Chapter 10). In certain developing fields, such as cybersecurity, soft law is an important tool to quickly and flexibly react to new developments, since the process is usually faster than hard law.

Several instruments and tools can be included in soft law, reports by national or international agencies, resolutions and declarations. The task of some institutions, such as the General Assembly, is actually limited to the creation of soft law. What is the relation to customs law(?), one might wonder. Although soft law is non-binding it can help to clarify customary law and it can function as an aid in the creation of that law.

How does the law of treaties work? - Chapter 3 (1)

3.1 Introduction

Just as every other community, the community of states needs rules to govern the agreements they have entered. It is to the benefit of every member of the community that the agreed upon rules are governed in one way or the other. The rules to govern treaties are found in the Vienna Convention on the Law of Treaties (VCLT), adopted by the UN in 1969. The draft was made by the ICL (International Law Commission). The Convention generally reflect customary international law, so far there is no known case where the content of a convention doesn’t reflect customary law. The Convention applies all treaties, whether multilateral or bilateral.

3.2 What does the concept of a treaty entail under international law?

A treaty is an international agreement governed by international law concluded by two or more international subjects with treaty-making capacity. In other words if a treaty is adopted this means a reflection of will between two or more international subject to conform to international law. Conforming to this law is generally a means to achieve their own interests. All legally binding agreements between states are governed by international law unless it is entered into under national law. The legal basis of a treaty is fairly simple, consent is sufficient. As soon as a state consents to a treaty it is bound by its terms and has to observe its rules. This is expressed by the principle pacta sunt servanda, reflected in Article 26 of the Convention. Article 27 on the other hand, states that states are not allowed to use national law as a defense for not complying with a treaty-based obligation invoked by international law.

It follows from article 3 of the VCLT that the Convention only applies to written conventions whereas international law also applies to oral commitments. “The title of the written instrument is immaterial” this means in practice that a wide scope of written documents can be branded as a treaty. From minutes to covenants, from charters to protocols. A wide scope of written documents may actually be called a treaty. However, as we saw previously a requirement is that the document was intended to be legally binding. Determining what the intention was may be a difficult task in theory. In practice, however, the document usually provides some clear clues as to the intention of the documents, this can be derived from the used terminology and the form of the instrument. Vague wording is usually a clue that a document was not intended to be a treaty. A recent example is the decision by the US not to submit for the Paris climate Agreement, where the US essentially signaled that it does not believe the treaty to be legally binding.

3.3 What authorities have the right to conclude a treaty?

Whereas all states have the legal right to establish a treaty, not all state representatives are allowed to do so. In this concept the term full power is of relevance. By means of article 7(2)(a) heads of states for example have the power to conclude a treaty. Ministers of foreign affairs may also do so without presenting full power. In essence, this means acting on behalf of a head of state. Certain diplomats can also adopt the text of a treaty without full powers.

3.4 What kind of treaties exist between states and international organizations?

International organizations in some instances have treaty-making power, for example, multiple treaties exist between the EU and the UN.

3.5 What consent is needed to be bound by a treaty?

As discussed before, consent is needed for a state to be bound by a treaty. In practice the VCLT is quite flexible in terms of determining consent and leaves it up to the cooperating parties to determine who consented and who did not consent to the treaty. One common way of consenting is by means of a definitive signature. If all the parties concerned agree, consent by means of accession is also permissible (see article 15 of the VCLT). In some case a signature has to be complemented by ratification, this means that the state recognizes that it plans to be bound by the treaty. Examples where ratification is needed are: the Treaty on the European Union (Maastricht Treaty) and the EU Treaty of Lisbon. If not explicitly mentioned, ratification is presumed not to be necessary.
 

3.6 What are the obligations before a treaty enters into force?

In the interim period, between consent and entry of force, there are no legal obligations, in practice however good faiths prescribes a certain level of compliance and acts may not defeat the purpose of the treaty. A bilateral agreement usually immediately applies, whereas a multilateral agreement usually only applies after some time. A reason for a long interim period can be that some states are still negotiating.

3.7 What is the validity of a treaty?

The majority of cases where there is talk of invalidity concerns defects in state consent. Besides jus cogens violations, nearly all claims relate to consent, in practice it is quite difficult to successfully claim invalidity of consent. In some cases invalidity of consent can be raised if the treaty is in violation of a state’s internal law, however this requires the violation to be of fundamental importance. Under article 48, invalidity of consent can be raised if there was an error in a part that formed a fundamental basis of the treaty. Other reasons for invalidity are fraud (article 49), corruption of representative (article 50) or if the treaty imposes a threat to the force of the Charter of the UN (article 52). The most relevant provision for invalidity is jus cogens norm (article 53 read in conjunction with article 64) as discussed earlier. In practice there is, however, little consent as to what he jus cogens norm can entail.

3.8 What reservations are included in the treaties?

Reservations refer to the adjustments a state may make to a treaty to put it in line with social, political or cultural specifics. This would mean a state does not agree to the full scope of the treaty. We can distinguish between reservations and interpretative declarations. The latter does not modify but clarify the treaty and is not mentioned in the VCLT and can be seen as a tool to interpret the treaty. Derogations enable a state not to adopt certain provisions of the treaty. For example, article 15 of the ECHR allows a state to ignore certain rules in times of war.

The ICJ issued certain reservations to the Genocide convention, to make I applicable without all contracting parties, this provision overrules the general rule that a treaty is not applicable without a state’s consent. A famous example of a provision is Sweden’s opt-out of the Maastricht Treaty. After a referendum voters accepted the entry of Sweden into the Treaty when subject to four opt-outs. Naturally, the possibility of reservations are limited (see Article 19 of the VLCT). For example provisions cannot undermine the very purpose of a treaty. In practice it is quite hard to establish the purpose of a treaty.

It follows from article 20 and 21 of the VCLT that other states have a time period of 12 months to disagree to the provisions made, if they fail to do so consent is presumed. Reservations by one country does not change the obligation other states have vis-à-vis each other. States may reject a reservation, accept the reservation or object to the treaty. If a reservation contradict the object of a treaty means that the treaty does not apply to the reserving party at all, which a state usually does not want. Since a reservation can be rejected, the state can become a member of the treaty without the reservation by means of severability, this is scarcely used in practice and a state can counter this by explicitly stating it will only be a joining party on the condition of the reservation. A reservation has to be made at the time of signing or in the period of ratification. After this time reservations becomes ineffective.

In theory a state can withdraw from a treaty and re-enter with a reservation but in practice this quite uncommon and the legal status of such actions is under debate.

3.9 How should treaties be interpreted?

The interpretation of a treaty mostly concerns deducting the intention of participating parties (states) (see article 31 & 32). Following article 31(1) a treaty needs to be ‘interpreted in good faith’. The interpretation consists of three elements: text, context and object and purpose. All these elements bear the same weight. An important part of the context is contained in the preamble of a treaty, (article 31(2)), however note should be taken of agreements and instruments used for the conclusion of the treaty. These sources may help to interpret the intention of the states.

In some cases the context of a treaty are hard to establish. For example, under the Geneva convention the actions in an armed conflict are prima facie inconsistent with the right to liberty, unless a state made a derogation from the treaty. Lack of derogation nevertheless does not prevent a court from taking account of the Geneva Conventions upon interpreting the treaty.

The status of preparatory works (preliminary drafts, records from conferences and explanations) can provide a supplement to interpret a certain treaty. Although not very common, these materials can be used to aid the interpretation of a treaty (article 32 of the VCLT).

Furthermore, differing languages may prove an additional hurdle in the proper interpretation of a treaty, all translations of the treaty have equal importance, again underlining the horizontal status of international law (article 33). Also, the interpretation method can differ per treaty. For some treaties a focus on intent is suitable whereas for other treaties it is more common to approach it in a more fundamental manner.

3.10 How can amendments and modifications be made?

As times and circumstances change parties may feel a need to modify the contents of a treaty. A prominent example is the ECHR which has been supplemented by a wide array of protocols and specific agreements. Many treaties contain a large number of protocols. Some charters contain provisions that make amendments legally binding if not all states have consented, for example a two-third majority in the UN Charter (article 108 of the Charter). Again, amendments can only be made if this is not forbidden by means of the treaty.

To form a more time efficient way of treaty amendments, parties may decide to adopt a framework convention, a structure to regulate any given topic with explicit specifications. Such a framework can for example provide a link towards regularly updated protocols.

3.11 How can a treaty be terminated and withdrawn?

Withdrawing from a treaty is generally only allowed if the possibility is either contained in the treaty or if withdrawal is in compliance with the nature of the treaty. Under article 60(3) of the VCLT material breach can also be a legitimate reason for withdrawing. Other exceptional circumstances may allow a treaty to be terminated, like fundamental changes. However, this concept is quite narrow (article 62).

Who are the actors in the international legal system? - Chapter 4 (1)

4.1 Introduction

The main actors in the international society are individual sovereign states, as discussed earlier. However, although states are the central actors in the system they are by no means the only actors. This begs the question, what is the relative importance of each actor in this system. The answer lies in the distinction between ‘legal subjectivity’ or ‘legal personality’. Not all actors hold the same rights or have the same obligations. According to the ICJ legal subjects are ‘not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community’. An international legal personality is able to bring claims in respect of breach of the international law, is able to conclude treaties and enjoys certain privileged positions. By definition all states have these rights in international law and other actors can receive these rights from the states.

4.2 What is the role of the state as an actor in the international legal system?

The amount of states has rapidly grown throughout history. From 50 states in the 20th century up to 193 in 2016. Only states can create international law.

Recognition

The rise of all these new state actors, begs the question which of this states should be recognized and endowed with the powerful tool of lawmaking? And what is the distinction between state and government? The former is a legal entity whereas the government is a representative of this entity. Therefore, lack of recognition of a state has a far greater impact than that of a government.

Two approaches can be distinguished in the recognition of states: the declaratory view, which states that the recognition of a state is a matter of law. Therefore, being recognized as a state depends on legal criteria. Then there is constitutive view, saying that a state is a state as soon as it is recognized by other states. According to this view a state is not an important actor under international law as long as it is not recognized by other states. The latter approach is used by Western states to deny non-civilized nations of certain rights.

UN membership can also be an important indicator of state recognition, although this is naturally not a pre-requisite condition. The US and the EC tend to base state recognition, state aid and trade agreements on the democratic level a state exhibits as a political tool to influence the policies of an emerging country.

Potential issues with the constitutional view

The constitutive view can be highly problematic because the concept of a state becomes very relative, how can a state really said to exist if it is purely based on recognition? For this reason international law is currently based on a declaratory approach, i.e. independent of recognition. Israel is an example of a country that is not recognized by many Arabic countries. State recognition is a requirement for bilateral agreements under international law.

What is the importance of the Montevideo criteria?

The clearest requirements to statehood are formulated in the Montevideo criteria (article 1): “The state as a person of international law should possess the following qualifications”:

  1. a permanent population;

  2. a defined territory;

  3. government; and

  4. capacity to enter into relations with the other states.

These criteria are based on effectiveness.

As to criterion (a), the population size, there are no special requirements towards the size of a state. The term permanence is not clearly defined and can be vague when for example nomads are concerned. Criterion (b) does not have any requirements towards size either. Micro-states may just as well qualify for statehood. The territory just needs to be precise and undisputed, furthermore a certain level of control is required. Criterion (c) states that someone must rule over the clearly defined territory with the permanent population, in court this has been defined as a stable political organisation’. Someone who can rule without the help of troops of other countries. The way this government came into power is not decisive. Once a state has been established, this criterion loses its importance, i.e. a state does not lose its status if it ceases to have a government. Criterion (d) means that a state needs to have legal independence and a such can determine autonomously with whom it enters into agreements. Scotland for example does not have this independence.

What is the role of illegality in the creation of a state?

When a state requires its status in an illegal manner, this can be rejected by the international community, leading the state status not to be recognized. In practice, this is highly uncommon. Usually violation of a jus cogens norm is at required. The rejection is also based on the idea that no legal rights can be deduced form unlawful conduct (ex injuria jus non oritur). An example is when a state denies a population of its right to self-determination, e.g. Rhodesia. However, there are plenty examples where unlawful conduct did not prevent a state from obtaining legal status.

What is the right to self-determination?

Self determination means that all citizens of a country and in fact all people of the world have a right to determine their own political status and pursue their own interests, in terms of religion as well as cultural considerations. The concept of self-determination is for a large part formed in reaction to the Second World War and is now contained in article 1 of the UN Charter and many other important treaties. This right has been used by many countries in the process of obtaining independence after the decolonialization process. More recently the right to self determination has been made more specifically to be bound by the specific framework and situation of a country, some countries may decide that their interests are better served while they are under the reign of another country. Such as Greenland (in essence a colony of Denmark). According to the right to self-determination they are allowed to, but have chosen not too, pursue independence.

For people that are not subject to colonialization the right to self-determination is extremely difficult to use and requires an unheard of violation of human rights, a complete denial in essence. The reason for this is to ensure international peace and stability. This is a clear example of the balancing of justice and stability as discussed in Chapter 1.

Is the acquisition of new territory recognized by international law?

Let us start with the question; in what way can a state acquire new territory?

First, a state can purchase territory from another state. One famous example is Alaska, the United States of America bought the land, that was previously owned by Russia. Furthermore, it tried to purchase Greenland from Denmark. Cession (assignment of property to another entity), was also widely used in Europe to obtain land in Africa and Asia. If cession occurs, the acquiring state still has to respect the rights of the selling country. Trading land can also be shared under this option

Second, a state has the possibility obtaining new land that emerges naturally. This is called accretion. One origin of accretion are volcanoes. A country may also artificially create land, artificial accretion, however, this has the legal obligation that no other countries are harmed in the process. Another term relevant in this respect is, avulsion. Loosely phrased, avulsion means the disruption of the lay-out of a land through natural disasters. Occasionally avulsion may disrupt or change the borders between two countries.

Third, a country may obtain land that did not have an owner previously, so called no-man’s land. As we discussed earlier, a state needs to exhibit that it is effectively controlling the territory it wants to lay a claim to. This third type of acquiring land has lost most of its relevance in current days, but used to be an important source in historic times. If a state wants to occupy a territory owned by a different state it is obliged to obtained consent from that state. In practice, however, the awarding of a piece of land, a territory of course does not happen through consent, but by means of showing that one state has more power than the other.

Whether through occupation or prescription obtained, any claim to land should be based on the pillar of effective possession. In any case, if a piece of land was previously undiscovered and a land wants to lay a claim to it, it should prove effective control of the territory. The display of authority should always be backed by a state and can not be a result of private actors solely.

What is state succession?

The disappearance and emerging of states is a vital process in international law. It is necessary to ensure international peace and stability, which as discussed are arguably the main goals of international law. Several rules exist on state succession, two conventions are of main importance: the Vienna Convention (1978) and the Vienna Convention of 1983. Generally, state succession is accompanied with many legal difficulties and is highly debated. One question that arises, for example, is: should it be considered as an entirely new state or as the continuation of the ‘old’ state?

When the Soviet Union was taken apart, the formation of the Russian state was generally considered to be a continuation of the ‘old’ state even though many separate countries were separated from the state. On the other hand, with the disintegration of the Yugoslavian Republic, so many countries were separated that the emerging states were considered to constitute new entities. This emerging has consequences, among other things, on the membership of the United Nations.

Another aspect to take into account is to consider whether the new states are subject to previous accepted treaties, conventions or other agreements. Usually this is not the case and agreements have to be formed anew. An important exception to this general rule is geographical boundaries, these usually remain intact, that is the boundaries with other countries.

What is extinction and how does it relate to the actors in international law?

Apart from succession a state can lose its status as state by means of extinction. In practice, however, it is extremely uncommon for a state to lose its statehood, without its own will. However, naturally a state may chose to disintegrate or even dissolve on its own accord, for example of it decides to divide its territory into two independent states.

4.3 What is the role of international organizations?

First of all, the question arises what is an international organization. Although, at first glance this may seem like an easy question to answer, in practice there is some debate. In one of ILC´s official document an international organization was defined as:

“an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities".

This should not be confused with Non-Governmental Organizations (NGO’s). NGO’s are considered as private actors, and thus these entities do not hold legal rights under international law. Examples of NGO’s are Amnesty International and several human right organizations.

So what are international organizations then? The most prominent example of course is the United Nations (UN). As this is considered to be one of the most important international entities that exist, we will discuss its structure briefly. The UN, has 193 members, all of whom have a position, a seat, in the Assembly. The leader of the Secretariat is chosen for a term of five years. The Economic and Social Council (ECOSOC) is another important part of the UN which is exactly as the name says responsible for social and economic issues. As discussed earlier, the ICJ is responsible for most legal issues. Furthermore, there is the Trustee Council, with the primary function of monitoring the Trustee system.

4.4 What is the role of individuals under international law?

Individuals role in international law is limited to the role bestowed on them by its government and the rights that are bestowed on them by human rights conventions and treaties. As a result a country can violate the rights of citizens. Originally, this was limited to the way a state treats its own citizens, however in recent times this has changed, as we will discuss extensively further on. Besides rights, individual citizens also have obligations they have to meet under international law. As such criminals can be prosecuted under international law. However, in practice this is limited to criminal acts with international consequences. I.e. the hijacking of an airplane, engaging in terroristic acts, etc..

4.5 What are other actors in international law?

Besides states there are several other entities that may have a stake under international law. Other entities may gain rights or be subject to obligations by means of treaties or conventions. An example is the setup of a trustee system, usually done post war, to monitor a certain territory. This tool, for territorial entities can also be used in the process of independence of a previously colonialized area.

Furthermore, a group of individuals can be considered to have rights or obligations. Legal personality may be incurred under certain circumstances. For example national liberation movements can be recognized as a legal personality in periods of a civil war. This effectively means the group obtains rights and obligations.

Lastly, private corporations may have certain rights and more importantly obligations. Of course, in recent times the focus on these obligations has increased. A straight-forward way is that a corporation has an obligation not to harm any human rights in its practices. Furthermore, there is a lot of talk of corporate responsibility, mainly by the United Nations. So far, this has been limited to guidelines and recommendations.

4.6 What is the role of Non-Governmental Organizations (NGO’s)?

Functionally, NGO’s can have the role of improving international transparency and helping the protection of important human rights. However, most NGO’s, as discussed earlier, do not posses legal personality, with the sole exception of the International Committee of the Red Cross (the ICRC). The ICRC is endowed with the protection of individuals in times of war or armed conflicts. The ICRC has obtained this right through a convention.

How is the issue of Jurisdiction organized under international law? - Chapter 5 (1)

5.1 Introduction

As mentioned before, the main goal of international law is to preserve international peace and stability, the issue of jurisdiction is organized accordingly. First and foremost, the jurisdiction of any state is limited to its own territory. As such it is not allowed for a state to exercise its powers in other jurisdictions.

A distinction can be made between the jurisdiction to prescribe and the jurisdiction to enforce. As such a state is allowed to try to regulate the conduct in another jurisdiction, but it is not allowed to actually enforce this another relevant trim is the jurisdiction to adjudicate, the right for non-international courts to treat those cases that are referred to them by international courts.

As is generally the case in international law, a balancing of state sovereignty and the rights of individual states is made. Consequently if a state tries to exert power over another state this can be seen of the limitation of the subject state and therefore it will, certain exceptions aside, be forbidden under international law. The issue of jurisdiction is a good example of the law creation discussed in the first chapter. There is no clear-cut answer to the issue of jurisdiction, nevertheless an overview is provided in this chapter.

5.2 What is the jurisdiction to prescribe and what is its role in international law?

The prescribing jurisdiction of a state means that it has the power to use its national law in international matters, this power is limited. It is generally accepted that the exercise of these rights is limited to those points were such acts would find support in legislative documents of international law. Furthermore, exceptions aside, the state needs to be affected by the behavior of the ‘infringing’ state in order to have a mandate to prescribe. In other words there must be some sort of connection. The power to prescribe is subject to five principles: the principle of territorial jurisdiction, the principle of jurisdiction on the basis of nationality, the passive personality principle, the protective jurisdiction principle and the universal jurisdiction principle. All the five principles will be discussed below.

What is the principle of territorial jurisdiction?

The principle of territorial jurisdiction fundamentally means that a state has jurisdiction in its own territory. In this context jurisdiction means that a state can judge on all acts on its land, whether criminal or not and whether committed by citizens from its own land or not. This principle can form a problem in cross-border activities, which is to say that a criminal activity can take place in several countries/several states or in several territories. Objective territoriality in this respect aims at the country that suffers the effect of a certain (criminal) act. Subjective territoriality on the other end of the spectrum is aimed at the place an act was started or planned. An example where the latter approach is often used is international cybercrime. Whereas in the attacks on 9/11 in the US naturally followed the principle of objective territoriality.

If acts have only an economic effect it is unclear whether a state will be able to apply its own legislation. There can actually be a battle of legislation of sorts, where EU legislation is imposed to counter US legislation.

What is jurisdiction on the basis of nationality?

The principle of jurisdiction on the basis of nationality prescribes that country have jurisdiction regardless of the citizens location, this is also called the active personality principle. Usually and historically states have a big interest in the behavior of their citizens (abroad) and they will generally not extradite a citizen to another state. Normally if a citizen has double nationality there is no clear preference for one or another state although there are exceptions.

What is the passive personality principle?

Under the passive personality principle a state has jurisdiction solely because the victim of the crime or act is a national of a state. This naturally creates uncertainty for the committer of a criminal act as to what punishment or laws he or she may be subject to. In the case of terrorism this principle has nevertheless become quite common as become clear in a terrorist action in an airplane hijacking where the only connection to the US was that the airplane carried US citizens. Generally, however, this principle is only used in the case of serious crimes.

What is protective jurisdiction?

Protective jurisdiction is used when jurisdiction on the basis of the earlier discussed territorial and nationality based jurisdiction do not suffice. There are some acts over which a state has jurisdiction regardless of whom committed the crime or where. There must however be a serious threat to national security or a state interest. A good example would be when someone is counterfeiting money outside of a country. I.e., somebody is using fake dollars outside of the US.

What is universal jurisdiction?

Some issues are of such a serious nature that any state may claim it has jurisdiction. A crime has to be of a very serious nature to be allowed to fall under universal jurisdiction. An example would be pirates who are outside of the jurisdiction of any particular state.

Violations that have a peremptory character/jus cogens, examples of which are serious human right infringements, genocides, slavery, etc. are other examples of acts that can fall under universal jurisdiction.

In the case of universal jurisdiction there is a trade-off between making all criminal acts punishable and reserving the peace and stability of international relations. A too aggressive application of the universal jurisdiction principle would endanger the international stability.

Extradition is also of relevance under this principle. There are several treaties overseeing the extradition process, which will be discussed more in depth in chapter 15, but will be discussed shortly here. The obligation to prosecute or extradite is a relatively new law. It is contained in the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft and were later included in several treaties.

What happens if jurisdictions overlap?

Given all the principles we have discussed so far it is of course by no means unthinkable that principles may overlap. When a situation presents itself where jurisdictions overlap this generally causes international friction. Usually the territorial jurisdictional state will claim jurisdiction, because it is quite literally the closest related to the crime. There have been some attempts to guide the decision which country has the strongest link to the crime, for example the jurisdictional rule of reason. In this principle the US tries to establish when it would be unreasonable to claim jurisdiction.

How is jurisdiction over airplanes and ships divided?

The jurisdiction over airspace is regulation in several conventions, one example is the 1944 Chicago Convention on International Civil Aviation, which contains the rule that any state has complete jurisdiction above its own territory. This includes the air above it and its own territorial waters. Other conventions specify that the state of registration of the airplane determines jurisdiction. The distinction applies for example when crimes are conducted aboard. The Toky Convention contains several rules aimed at preventing hijacking. The issue of this jurisdiction will be discussed in depth in chapter 8.

5.3 What determines the jurisdiction to enforce?

The PCIJ notes in the Lotus case that if there is no permissive rule (see principles discussed above) giving permission for jurisdiction than a state has no right to enforce its jurisdiction, unless another state gives it consent to do so. This is why extradition rules become important, because a state in principle has no right to arrest an offender in a foreign state. As discussed, however, countries usually will not extradite their own citizens. If extradition happens this is guided by several principles. The first on being that of double criminality, this means that the alleged crime must be a criminal act in both states. Second, the principle of double jeopardy, this stipulates that an alleged criminal cannot be punished twice for the same crime. Furthermore, all extraditions should be guided by human rights conventions. For example article 3 of the ECHR contains that there may be no risk of inhuman or degrading treatment in the country which will be receiving the extradition. Human rights conventions, treaties or laws may also prevent extradition if there is a risk of a death penalty being imposed on the offender.

It is not unheard of for states to give consent of foreign troops on its territory, this was for example what happened in the case of the seizure of a high Nazi officer.

There have been some draft conventions formed to prevent any prosecuting of individuals that are in violation of international law. However, in practice, currently most states will follow the mala captus, bene detentus, which means as much as badly captured, well detained (loosely translated), i.e. a state will prosecute an offender even if it was captured by illegal means. In certain case law The Court found that it is generally only necessary to return an individual if the subject state so requests.

What is the role of immunity from national jurisdiction and diplomatic protection in international law? - Chapter 6 (1)

6.1 Introduction

As we have seen before states have complete jurisdiction in their own territory. It can enforce its laws in the way it so desires and to a certain extent also prescribe the laws it desires. However, in some cases this general principle does not hold true and a state will be obliged to refrain from enforcing its own rules. For example, representatives of other states are granted a certain level of immunity. If a state violates these immunity principle, international upheaval will generally follow. This principle is based on the fact that states have equal sovereign authority. As such a representative of a sovereign state as a matter of speaking carries with it, personifies the visiting state’s laws. This chapter contains an explanation of the connection to state property, immunity of representatives and lastly the rights and privileges that a visiting state has when it is in another state (a host state).

6.2 What is state immunity?

State immunity is an important concept in international law, it has mostly been developed by the law of the states and not necessarily international law. However, two conventions were important: The European Convention on State Immunity of 1972 and the UN Convention on Jurisdictional Immunities of States and Their Property, which has been adopted in 2004.

There is an important distinction to be made in state immunity: adjudicative versus enforcement jurisdiction. The first is concerned with the authority or jurisdiction to make a judgment in all issues that have a relation to issues that also concern foreign states. Whereas the second is concerned with jurisdiction regardless of procedures or authorities.

State immunity from the first principle, by means of adjudication contains that a state cannot be brought before a court outside of its own territory unless it agrees to the proceedings. This is therefore a procedure that needs to take place regardless of whatever the proceeding contains. In practice this right is used very little and state immunity cannot just be claimed. It has to show that it has the right of immunity which is interestingly, as established in the UN convention, established by its courts. In such proceedings a court may find that the issue falls outside of its competence.

If there is any doubt as to the state’s sovereignty or if there is some controversy as to its independence than a state is not entitled to immunity. For the concept of immunity all the subsidiaries of a state are included (i.e. any ministries, armies, etc.).

What is the difference between sovereign and commercial acts in adjudicative jurisdiction?

In the earlier days of international law absolute immunity was contained in adjudication, however this has progressed to a more restrictive concept of immunity. This restrictive approach means that immunity is limited to some instead of all acts of a state. Until the 20th century a state could in practice not be sued unless it agreed to be sued, with a sole exception for land property issues. Exactly because states become more active in commercial ways this principle ceased to make any sense in practical matters, a proceeding could not be started in those cases just because one of the parties was the state.

In reaction to this mismatch a more restrictive approach was established, to limit the immunity to certain activities only. A recent example where this was under debate was in a case against Russia in 2013 by the ECtHR (the European Court of Human Rights) where Russia was accused of reintroducing its full immunity. Nowadays it is well established that state immunity does not apply to commercial acts.

What is the difference between jure imperii and jure gestionis acts?

The aim of refusing full state immunity is to not limit state responsibility if it is engaging in activities where it competes as an ‘equal’ party to commercial parties, individuals or corporations. After all it does not engage in this activities in its public role. However, it has proven difficult to make this distinction, between public and commercial acts. For this purpose the so-called private individual test was developed. Could the activity be conducted by an individual? If yes, than the state is not entitled to immunity.

A more sophisticated approach focuses on the purpose and the nature of the activity, if both are of a public aim the type of action is considered public. But even this test in practice is not sufficient and more context is usually needed, as a response the 2004 UN Convention establishes that the determination ‘should be made primarily of the nature of the contract or transaction, but its purpose should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction’.

A sovereign act (jure imperrii) means that the act falls within the territory of the state whereas the state is acting commercially or as an individual (jure gestionis) otherwise.

When do state exceptions for immunity not apply?

Commercial exceptions to state immunity are not the only exceptions that apply to state immunity, the commercial exception is by the way contained in article 10 of the Convention. Article 5, on the other hand, states that a country cannot apply for immunity if it is contained in one of the exceptions mentioned in articles 10 through 17 (also from the Convention). Of these exceptions the majority are supplements to the commercial exception, articles 11-17. Employment contracts is one example of an exception. Another exception applies to insurable risks that result from traffic accidents, injuries and damages. There is also an exception contained in the Convention that applies to state property, in particular immovable state property.

What happens if state immunity is violated under international law?

Any case that has the possibility of state immunity should be dismissed by the court. As such there is a certain friction between state immunity and the general notion of justice. In this respect there are articles contained in the UN Convention that make violations against international law immune from immunity so to speak. The Court recently found, in a case between Germany and Italy, that state immunity is not dependent on the gravity of an act.

When is there immunity from enforcement?

When can we expect for this concept to be of relevance? First of all it should be noted that there is a distinction between immunity from enforcement and immunity from adjudicative jurisdiction. As such there are also differing principles that guide their respective immunity. It can in some cases be that a state is not immune from adjudicative jurisdiction, but nonetheless immune from the proceeding enforcement of those issues. Nevertheless, states are usually reluctant to accept immunity from enforcement quite possibly because of international relations.

6.3 What is the immunity of state representatives?

As the personification of states, diplomats/state representative enjoy a certain level of immunity. The reason for this is that they need to be protected in fulfilling the role their state assigned to them. This role can only be properly fulfilled in case this diplomat gets perfect freedom. Nevertheless, the immunity granted is by no means equal to all representatives and does not have to be absolute. The immunity a diplomat/state representative gets in most cases only applies to the times when it is fulfilling its role, not in personal matters.

What is the immunity of high-ranking state representatives?

Most importantly and foremost, the head of a state does have personal immunity, which is derived from customary international law. One of the reasons for this is that a head of state enters into contracts on behalf of its country without acting on behalf of someone else. There is no clear dichotomy as to what other representative get full personal immunity. A Chinese minister commerce and an Israeli minister of defence have been granted personal immunity. If personal immunity is granted this means a representative gets immunity from civil and criminal prosecutions. This applies to private acts as well as professional acts. However, not all personal acts are naturally exempt. It applies to acts conducted before the representative period and there is no distinction needed between enforcement and adjudicatory immunity.

As mentioned earlier not all personal acts are exempted. First, courts in the representatives own country can still prosecute the representative. Second, courts in a forum state can prosecute the representative, but only if the home state agrees to this. Third, criminal prosecution by an international court (see chapter 15 for a more elaborate discussion of this point). Fourth, a state representative can be prosecuted after his period as a representative, after this period. This also applies to acts conducted before this period, however acts conducted in the form of a state representative benefit from immunity.

What is the immunity of other state representatives?

Most state representative are not protected in private acts, but only in official acts. This is called functional immunity. This is a derivative of the state sovereignty, which is as a matter of speaking, bestowed upon the representative whilst it is performing its duty. This immunity is not influenced by motive, as long as it is performed under official authority, immunity is granted. Furthermore, even if the act falls out of the scope of the state representative’s role it will still be granted with immunity. For these acts the distinction between jure imperii and jure gestionis is deemed not relevant. As such a person that performs a commercial act on behalf of the state still enjoys immunity (whereas the state does not).

What is the protection offered to state representatives?

All officials are protected from civil proceedings concerning acts done out of official authority. It is concluded in the UN Convention that the concept of a state includes, at least for purposes of immunity, the state representative acting on its behalf. The extend of functional immunity differs over the rank of the state representatives. Furthermore, a state should notify another state, i.e. invoke immunity in the case of civil or criminal proceedings against this representative if it fails to do so, the forum state may initiate proceedings. Note that this only applies to non-high ranking representatives.

6.4 What are the diplomatic immunities and protections offered under international law?

Most of the communication between different states is conducted by state representatives on a diplomatic mission. Naturally, one of the parties is visiting the other party and is as such in a vulnerable position. International law contains several protections to protect diplomats in these situations. These protections are contained in the Vienna Convention on Diplomatic Relations (the VCDR). Diplomatic law is formed to benefit the state interest, not necessarily the diplomat’s interest. Although usually diplomatic missions are done consensual, there can still be a balancing of concerns of the sending state and the receiving state. In practice, a receiving state is always free to refuse a diplomatic mission and it may appoint a military attaché to the diplomatic mission.

What are the immunities and protections of diplomatic agents?

The immunities and protections can be found in articles 29 through 39 of the VCDR and again the level of protection depends on the rank of the state representative. Article 31 is deemed to be of particular relevance in this respect:

Article 31

  1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
    1. A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

    2. An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

    3. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

Furthermore it is contained in article 31(2) that a state representative (diplomatic agent) is not required to give any evidence as a witness. Also he/she is exempt from dues or any taxes. Furthermore, all immunity equally applies to family members.

What is the protection of diplomatic premises and property?

It is contained in article 22 of the VCDR that all the properties of the diplomatic agent are inviolable. This includes any documents or archives of the mission. Violations of these protection are rare. However, passivity can also be punishable under international law. This was for example the case when a Danish embassy was attacked in Lebanon after the ‘Mohammed cartoons’. The Court found that the authorities failed to properly protect diplomatic properties due to passivity.

What is the protection of communication?

In principle diplomatic agents should be allowed to travel freely in the forum state as longs as this does not pose a threat to the national security of the receiving state. Furthermore, there should be freedom of communication granted to the representatives of the visiting state.

What are the obligations of the sending state and when is there an abuse of privilege?

Article 41 of the VCDR contains certain violations of state representative, for example a state representative of the sending state is not allowed to ‘interfere in the internal affairs’ of the forum state. Also, it should conduct itself in a respectful manner towards the receiving state’s property.

Lastly, the rules regarding the inviolability of diplomatic premises is not dependent on any other rules. The Iranian state for example argued that it was allowed to claim back US embassy premise because of its 25 years long interference in the Iranian country. However, the ICJ found that this line of reasoning does not apply towards diplomatic premises.

What is consular protection?

Consular agents perform a role that is of a more assisting nature. Nevertheless, consular premises are inviolable as well, premises may under no circumstances be entered without the consent of the host state. Furthermore, a consular only enjoys immunity from official acts in his or her description.

What is immunity for representatives on a special mission?

For short-planned missions, and as a supplement to the more permanent diplomatic established relations, states may use what can be called ad hoc diplomacy. This is mostly used for special missions. Diplomats on a special missions are immune of prosecution from the host state. However, this can only be derived from the consent of the host state. As a result, for example, the UK once refused to issue an arrest warrant for an Israeli politician which was alleged of war crimes, because it had allowed the presence of this official on its soil for a special mission.

What is the state’s responsibility under international law? - Chapter 7 (1)

7.1 Introduction

The ILC sets out the rules for those cases where a state fails to comply with its duties and obligations. A state holds responsibility under international law over all acts conducted not only by state officials but also by private individuals appointed for certain tasks as we will come to see in this chapter. Usually a failure of compliance with obligations or a violation of international law results in two duties: the duty to cease the breach and the duty to make reparations.

7.2 What are the core responsibilities and elements of state responsibility?

The very heart of state responsibility is contained in article 1 of the ILC articles: ‘Every internationally wrongful act of a State entails the international responsibility of that State.’ In other words, every state is responsible for its own conduct. However, in some cases the conduct can be that of several states acting together in which case the issue of responsibility arises of states arises.

Article 2 makes a distinction between two elements under state responsibility: First an act must have an international character and more particular a breach of the international obligation and second there must be a direct relation between the state and the act (attributability). As discussed earlier Iranian citizens occupied the US embassy for a certain length of time. The Court found that Iran breached its international obligation in this occurrence. The breach was against the Vienna Convention on Diplomatic Relations. Again this can be seen as a breach resulting of passitivity. The Iranian government should have better protected the US property from its own citizens. As discussed earlier there is no distinction in civil and criminal illegality, however this does not prevent a state from being criminally accountable for any violations it makes towards its international obligations.

It is important to note that, the violation of state obligation does not have to be the result of a wrongful act, such as damaging property. It may very well be the result of negligence, as discussed above. What’s more no actual damage is needed for a state to violate the international obligations. Nevertheless, the (amount of) damages is usually relevant in determining the level of the fines. Furthermore, article 3 of the ILC states the internationality principle, meaning that a state has to comply with its state obligation even if this counters national laws.

7.3 What is the attribution of conduct?

In short, this means that a state can only be held liable for its own conduct. This includes the acts of state representatives or state organs. However, private acts are excluded. Nevertheless, as we have seen before a state can still be held liable for damages resulting of the acts of private individuals. For example when it has a duty to protect individuals or premises. Furthermore, as we will see in chapter 10, states have a due diligence obligation. In this subchapter it will be discussed what acts are attributable to the state.

What is the attribution for acts performed by the state and its organs?

This principle is very straightforward, if state organs are acting in a way that is the exercising of legislative, executive, judicial or any other functions the state shall be held liable. The position of the organ is in this case irrelevant and the term organ should be interpreted in a broad manner: ‘any person or entity which has that status in accordance with the internal law of the State’. Acts by state officials are included, regardless of rank (article 4 of the ILC).

What is the attribution of acts performed by organs exercising governmental authority?

Article 5 of the ILC states that individuals and entities are acting as a state organ in the absence of the state itself. In some cases it may be difficult that private organizations are conducting acts on behalf of the state. However, it is stated in article 5 that the state government is responsible in those cases anyway, in other words it cannot evade the responsibility it has as a state by outsourcing an activity to a company. The acts of private individuals on the other hand do not fall under article 5.

What is the attribution for acts by organs on loan from another state?

This is contained in article 5 of the ILC. In some very rare and exceptional circumstance a state may decide to make a state organ available to another state, this most commonly occurs in crisis situations. As one may intuitively expect, the responsibility for the acts of the loaned state organ lies with the state receiving the loan.

What is the responsibility for acts ultra vires?

Ultra vires acts are contained in article 7 of the ILC. Ultra vires means acts that go beyond the mandate an organ has received, or acts that are contrary to the orders received. The state is in all ultra vires acts still responsible for the acts of the state organ, again underlying the general principle that a state cannot evade its responsibility.

What is the attribution for acts performed by private individuals?

As a general rule states are not responsible for acts by private individuals, however there are some exceptions to this rule. This question came up in the case of the terrorist attacks of 11 september 2001 in the US. Article 8 of the ILC stipulates that a state can only be held liable for private acts if the state was instructing the individuals to carry out their conduct (direction and control). There has been plenty of debate as to what is contained under the concept of direction and control. In the Nicaruaga case before the ICJ, effective control was found to be the essential principle. Whereas in the Tadic case before the ICTY (the former International Criminal Tribunal of Yugoslavia) the high threshold for control was criticized. In any case, it is clear that the threshold will not be lowered in atrocious acts such as genocides. As for the 9/11 case there were no clear clues that the Taliban government had effective control over al Qaida or that the government instructed the terrorists in their conduct. This will be explored further in chapter 13 were the concept of unable or unwilling doctrine will be elaborated on.

What is the status of acts on insurrectional movements?

First and foremost, it should be noted that the stated holds no liability for any insurrectional movements. If on the other hand the insurrectional movement succeeds and takes over power and as such forms a new government in the state, article 10 of the ILC prescribes that the state will be liable for its acts.

What is the position of acts subsequently acknowledged and adopted?

It follows from article 11 of the ILC that a state may be held responsible for an act if it, at a later time, acknowledges the act as its own conduct. We can return again to the example of the Iranian ‘attack’ on the US embassy. The government approved the occupation as a political move to exercise pressure on the US government. Because of this approval, the occupants were seen as Iranian agents.

7.4 What are circumstances precluding wrongfulness under international law?

One of the circumstances that precludes wrongfulness is consent. Consent has to be valid and, depending on the circumstances, also provided by a person that had the authority to do so. There are different levels of authority for different officials. There is some controversy as to the position of consent in international law. There is, for example, quite some controversy about the consent that may or may not have been provided for the targeted drone attacks by the US on alleged terrorists.

What is the position of self-defence?

Wrongfulness of a punishable act can be precluded if the act is conducted in conformity with the right to self-defence (article 51 of the UN Charter).

What are lawful countermeasures?

Lawful countermeasures are another example of a circumstance that may preclude otherwise wrongful conduct. Lawful countermeasures usually entail a countermeasure against the breach another country makes of international law. The exact countermeasures allowed are contained in article 49-54 of the ILC. There are limits, however, as to the gravity of the countermeasure. For example, a state is not allowed to use force as defined in article 2(4) of the UN Charter. And, second, unsurprisingly a state is not allowed to impose any countermeasures that infringe human rights. Third, they cannot be the result of obligations of a humanitarian character and fourth, they may not exceed any jus cogens or peremptory norms.

Overall countermeasures must be proportionate, reciprocal in nature and fair.

What is force majeure?

Force majeure is another circumstance that may preclude the wrongfulness of unlawful conduct. It is contained in article 23 of the ILC and says that a state may neglect to conduct an obligation on the premise of ‘the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State’ which make it immaterially impossible to fulfill its obligation. Force majeure is not valid if the state itself incurred or caused the risk of the situation. In summary, force majeure means that a state cannot be obliged to do the impossible.

What is the role of distress?

Distress is another circumstance that can preclude wrongfulness of an illegal act (contained in article 24 of the ILC). The difference between distress and force majeure is that the former can be relied on when the state is in principle not unable to fulfill its obligation but it would require an unreasonable sacrifice.

What is the role of necessity?

The last and final circumstance to preclude the wrongfulness of an otherwise illegal act is necessity, which is contained in article 25 of the ILC. Necessity can be called upon in the case that ‘a grave and imminent peril’ would occur if the state would fulfill its obligation. There must, however, be an essential interest at stake. And not fulfilling the obligation must be the only way to prevent the aforementioned distress. Furthermore as contained in article 25(2) invoking necessity must not ‘seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole’. Overall, this is considered to be one of the more dubious circumstances. Furthermore, the necessity defense does not cover primary rules. But according to some it may be used as a reason for intervention with force for humanitarian reasons.

What are circumstances precluding wrongfulness and jus cogens?

All the exceptions discussed so far have to be read in conjunction with article 26. It is contained in this article that a state cannot invoke any of the circumstances as a defense if a perempotory or jus cogens norm is violated.

7.5 What are the consequences of wrongful conduct?

The obligations that flow from wrongful conduct are contained in article 30 and article 31 of the ILC. The first obligation is to cease the wrongful conduct and the second is make reparations of the results of the conduct.

What is the role of the cessation of wrongful conduct?

This rule is very straightforward, in violation of international obligations a country is obliged to cease its behavior. This can for example take the form of an ‘offer of appropriate assurances and guarantees of non-repetition’.

What is the duty to make reparation?

After the assurances of non-repetition a state is consequently obliged to make reparation. This is contained in article 31 of the ILC. The purpose of such reparations must be to ‘as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed’. There should be a full or appropriate compensation of the injury caused by the state. The injury can consist of material or immaterial damage, such as moral damage, pain and/ or suffering. The forms of reparation are contained in articles 34 through 38.

7.6 Who may invoke a breach of international law?

The state that has incurred the damages or of whom the individual’s rights have been violated can seek compensation for the wrongful act. This is called the injured state. The circumstances under which a state can seek compensations are listed in article 42 of the ILC. One example is bilateral treaties, but it can also be a more general harm such as decorating its position (that of the injured state) versus other states.

What are obligations erga omnes?

It is contained in article 48 of the ILC that injury is not a necessary condition for a state to seek compensation. For example, if a state is acting in response to a non-fulfilled obligation in order to protect the interests of a group of states, such as violations of fundamental human rights. These are called erga omnes obligations. There are, in summary, some cases where the whole international community has an interest in the violation, whether it is directly injured or not. In such cases ‘uninjured states’ may seek legal action as well. Usually, erga omnes obligations are similar to jus cogens or peremptory norms.

What are the international responsibilities of international organizations?

The ILC articles as discussed above and all other articles not discuses above do explicitly not apply to international organizations (after all they are called Articles on the Responsibility of States). Article 2(a) of the ILC defines international organizations as ‘an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality’. Although, the obligations described in the ILC articles do not apply to international organizations, this does not mean that an international organization is not legally obliged to fulfill its international obligations (see article 3 and article 4 of the ILC). Furthemore, it is contained in article 6, that conduct by the agent of an international organization regardless of the position of the agent. If an agent is loaned out to another international organization, the organization loaning the agent is only responsible in case it still exercises effective control over the agent.

What is the international law of the sea? - Chapter 8 (1)

8.1 Introduction

The formation of the international law of the sea can be traced back all the way to the origins of international law and is one the earliest applications of its principles. The regulation of more than 70% of earth’s surface was historically important in the context of colonial explorers and powerful maritime powers such as the British and the Dutch. The very fundamental of international sea law is the trade-off between national sovereignty of states situated at the coast or sea and the states that wish to exploit the added value of the sea. To handle this inherent tension, a ‘zonal system’ was established. According to this system the further away the sea area is from the coast the more the rights of the coastal states decrease.

Furthermore, the deep sea areas considered to be common heritage and international law is concerned with the preservation of international law.

8.2 What are the sources of the international law of the sea?

One of the most important sources is the United Nations Convention of the Law of the Sea (the LOSC). The document stems from 1982 and entered into force in 1994. A 167 states take part in this Convention, however the United States and Turkey do not participate in the treaty. As one can imagine the formation of the LOSC has been one of the biggest negotiation tasks in history. The negotiations, which built on older treaties and finds much of its foundations in international customary law, aim to balance the interests of the states that wish to exploit the seabed and the distribution of the proceeding wealth.

8.3 What is the spatial partitioning of the sea?

As a result of the balance discussed above is a legal system that makes fine distinctions between the interests of several states, which will be discussed in more detail. In general, a distinction can be made between areas that fall within the national jurisdiction of a coastal area and those that lie beyond this area. The former category can be subdivided into two parts, one that contains exclusive rights of the coastal state and one that lies beyond its territorial sovereignty. Furthermore, the sea itself is divided, for the international law of the sea, into three areas: the atmosphere above the sea, the water in the sea and the seabed and subsoil.

What is the concept of baselines?

The baselines is the exact point from where the measurement starts. A state has the interests to establish this point as far into the sea as possible, but of course there are certain principles that guide the drawing of baselines. The first principle can be found in article 5 of the LOSC: ‘the normal baseline … is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State’. There are however cases where the ICJ departs from this principle and accepts a different form of baseline. It is for example contained in article 7 that straight baselines can be acceptable as a deviation from normal baselines. The conditions for such straight baselines are contained in article 7(3).

Article 10 of the LOSC describes the concept of bays. There are specific rules concerning the indentation this is not considered as a bay if the area is ‘smaller than a ‘semi-circle whose diameter is a line drawn across the mouth of that indentation’. Article 12 is concerned with islands and describes that these islands incur the same type of jurisdiction as other pieces of land. However, it should be possible to hold human life on the island and it has to be above the sea at high-tide. This ability to sustain human habitation is contained in article 121(3) and was in-depth discussed in the South China Sea Arbitration.

What is the position of internal waters and the territorial sea?

The internal waters are made up of a straight baseline and water on the landward side of anclosed bay. Normally, a state is entitled with full sovereignty over its internal waters and is allowed to access all regulation to its waters. However, in practice this right is used scarcely. Territorial sea is the part that runs parallel to the coast, which can be a maximum breadth of 12 sea miles and includes the atmosphere above the sea.

Under the principle of innocent passage, vessels from foreign countries are in principle allowed to freely pass as long as they don’t enter the internal waters or ports of the state. The principle of innocent passage is explained in article 8 of the LOSC, it must at least be continuous and expedited, naturally acts such as spying are deemed as deviating from innocent passage.

If a state expects passage not to be innocent of nature it may undertake steps. The steps a state is allowed to take are contained in article 27 of the LOSC, a state is not allowed to undertake steps unless it concerns the following circumstances:

  1. The consequences of the crime extend to the coastal State

  2. The crime is of a kind to disturb the peace of the country or the good order of the territorial sea

  3. The assistance of the local authorities has been requested bu the master of the ship or by a diplomatic agent or consular officer of the flag state, or:

  4. Such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

Although the coastal state also has the right to exercise criminal jurisdiction it should take due regard of the navigational circumstances of the ship. In other words, even if according to civil jurisdiction a ship could be stopped because there is a criminal aboard. Following article 28(1) may still mean the coastal state is not allowed to stop the ship (‘a coastal state should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship’).

Other rules apply to archipelagic waters around archipelagic states (such as Indonesia). Furthermore, special rules apply to international straits, these are routes used for international navigation, such as the Malacca Strait, the Strait of Gibraltar, etc. Navigation through an international strait is ruled by the right of transit passage (see article 38), this applies to aircrafts as well. Furthermore, historic straits are also exempted.

What is a contiguous zone?

This is a part or area of the sea where the coastal state can punish ‘infringements of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.’ This applies to crimes committed earlier. It may also prevent, if it expects a ship to commit a crime. Both are limited to a maximum of 24 sea miles, which is again measured from the baseline.

What is the exclusive economic zone (EEZ)?

Arguments may arise about which country has the right to exploit certain natural resources in an area in the sea. For example, fishing. It is contained in article 57 that the Exclusive Economic Zone of fishing rights may reach up to a maximum of 200 nautical miles away from the baseline. An Exclusive Economic Zone also applies to the bottom of the sea, both the water and the soil, and the atmosphere above the water. Contrary to an Exclusive Fishing Zone (EFZ) an EEZ applies to more rights than just fishing. For example, if a country has an EEZ, it may produce an artificial island if it is deemed necessary. The measures a state may take to enforce these rights are described in article 73. Other states may generally still navigate through such areas as long as it does not interfere with the exploitation of the EEZ (see article 58(1)).

What is the concept of a continental shelf?

The continental shelf is the area below the subsoil of the sea. According to customary international law a sovereign state does not need to declare special rights to this area, because the continental shelf can be regarded as part of the state’s territory by its nature. Why are these rights important to states? A large part of the extraction of gas and oil happens from these areas. The same area of exploitation rights applies as to the exclusive economic zone (EEZ) described above, i.e. 200 nautical miles from the baseline. If the continental shelf is partly contained within this zone and partly outside it, article 76($)(a) gives guidance, the territory is then depended on the starting point of the continental shelf, any of these claims to the rights should be directed at the Commission on the Limits of the Continental Shelf.

How are the high seas regulated?

The high seas are ’all parts of the sea which are not included in the EEZ, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State’. They do not lie within the right or jurisdiction of any sea, and are as such governed by the principle of freedom of the high seas. In this area the obligations and rights of all states are equal. However, the flag state has jurisdiction in this area on the ship that is passing through it (see article 92). This invites some shopping, so to speak, for ships to use the flag of a country which has the most favorable regulation. Therefore, article 91(1) requires a genuine connection to the state.

Furthermore it is contained in article 110(1) that a state has the right to visit a vessel on the reasonable suspicion that:

  1. The ship is engaged in piracy;

  2. The ship is engaged in slave trade;

  3. The ship is engaged in unauthorized broadcasting and the flag state of the warship has jurisdiction under article 109;

  4. The is without nationality; or

  5. Though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

The rules concerning privacy itself are described by articles 100 through 107. The definition is contained in article 101, and roughly translated it means to enter a ship without permission and is interpreted by the courts to be limited to private individuals entering a ship. Actions by action groups, for example Greenpeace are included. Acts of internal piracy, i.e. hijacking are described and covered by different regulation. Following article 105 states are allowed to enter and seize a pirated ship, furthermore they are allowed to impose penalties. It follows from article 111 that a state’s warship is allowed to pursue a ship that has violated international law into the high seas in case of a hot and continuous pursuit. Force must be avoided in this pursuit and if needed must not be in excess.

What is the delimitation of maritime zones?

As one may guess, the various zones within the international sea law are bound to overlap. Of course issues may arise as a result of this overlapping, therefore in cases overlap arises there will be delimitation. These rules are described in article 15 of the LOSC (so called special circumstances rules). Normally, this will be done by drawing a median line, unless there are special historical claims.

On the other hand, in case there are double claims, one on the basis of an EEZ and a continental shelf an ‘equitable solution’ will be sought. This is, however, a wide an unclear definition which gives a lot of discretion to the courts. Usually the following approach is followed: first, identification of the provisional line of equidistance. Second, examination of special circumstances which may incur the need for adjustments. Third, a test of proportionality.

There has been plenty debate about the second and the third step. After all what circumstances call for a deviation from the status quo? Economic position of the relative countries has not been found to be a sufficient reason. On the other hand, geographical issues are more likely to be a good reason.

8.4 What is the role of the conservation of marine life?

The preservation of marine life has a central role in the international law of the sea. Since the economic existence and well-being of many countries depend on the wealth of the sea, exhaustion of this resource is a serious threat in many cases. Most of the treaties to govern this protection were installed after the second world war. An important one is, the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas. Under the LOSC states are, nevertheless, usually free to catch all the fish they want in their territorial zones. However, the majority of fish is caught in the Exclusive Economic Zones (EEZ) and the fishing in this area is protected against over-fishing by rules in article 61(1), this article aims to make sure that ‘the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation’. This article must be read in conjunction with article 62 that prescribes that states have to ‘promote the objective of optimum utilization of the living resources’. Of course in practice, fish move from one zone to the other and often undertake distant migrations, therefore article 63 contains provisions for highly migratory species.

The fishing of larger species is governed by article 65 and further specific regulation exists for ‘whaling’ and there is a special convention for this type of fishing, the International Convention for the Regulation of Whaling (ICRW), which applies to all waters.

8.5 What is the role of the protection of the marine environment?

The regulation of the protection of marine environment is a relatively new are of international law. It isn’t until the 60s/70s that marine environmental protection become a vital element of international law. The general obligation to prevent pollution is contained in article 192. The biggest threat to the marine environment is ‘land-based sources of pollution’. Furthermore, the roles on dumping are contained in the 1972 London Dumping Convention which contains that dumping is prohibited unless it is specifically stated that dumping is allowed. Of course there are many famous examples of pollution by vessels through the leakage of oil, rules for these types of spillages are contained in the International Convention for the Prevention of Pollution from Ships. A clash can be found between the free principles of the high seas and the protection of marine environment, the UN has recently undertaken initiatives to make stricter regulation in this regard.

How are disputes settled under the law of the sea?

The LOSC contains a myriad of rules, rights, obligations and guidelines on dispute settlement. A state has four different possibilities for settling a dispute:

  • The ITLOS;

  • The ICJ;

  • An arbitral tribunal (see annex VII of the LOSC)

  • A special arbitral tribunal (Annex VIII of the LOSC)

If the parties cannot find agreement on the way to settle the dispute it will follow the procedures from option three an arbitral tribunal.

The ITLOS is a tribunal of 21 members who serve in their individual capacity.

What is the role of international human rights law? - Chapter 9 (1)

9.1 Introduction

As discussed in earlier chapters, international law is a horizontal legal system with the prevention of friction between sovereign states as its most important goal and primary purpose. As a matter of fact, it was not until the 20th century that international law begin to provide individuals protection from their state (for the most part). The ideas for such individual human rights were formed in the Enlightenment period in the 18th century. This translated into human rights under national law in the 19th century and the human rights conventions as we know them find their origin for a large part in the period after the second world war. An important role in this perspective was the one played by the General Assembly’s Universal Declaration of Human Rights (UDHR). It’s first article contains that: ‘all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in the spirit of brotherhood.’

9.2 What are the sources of human rights law

As we discussed before, it all began in the 1948 UDHR. The UN has over time drafted over nine primary universal human right treaties, these treaties are open to all countries and can be distinguished in General conventions, particular human rights issues, protection of certain categories of individuals deemed vulnerable, but there are also conventions that are aimed towards regional human rights, such as the European Convention on Human Rights (ECHR) which was imposed by the Council of the European Union. Fundamental human rights are protected by customary international law and as such all countries are bound by them.

9.3 What are the categories of human rights?

A classification can be made of several types of human rights: civil and political rights, economic and social rights and collective rights.

What are civil and political rights?

One of the earliest human rights are the civil and political rights, also called the first generation of human rights. These rights contain for example the illegality of torture and slavery. Rights like free speech and religious freedom. These rights are fundamentally concerned with protecting a citizen from his or her state. There are also broader concepts contained under civil and political rights such as the principle of human dignity. This is an example of an absolute right which does not allow for balancing against circumstances. Furthermore, a citizen is entitled to certain freedoms such as the freedom of speech, freedom of religion and a myriad of other liberties. Principles of equality also fall under these types of rights such as the right to non-discrimination. Other principles are the principles of justice and fairness and the right to a fair trial. Lastly, a more political right is the right to vote and the right of political participation.

What are economic and social rights?

These type of rights are the ‘second generation of rights’ and can be primarily found in the ICESCR, rights such as the right to work as such, and the right to work in fair conditions and for a fair wage are contained in the ICESCR. Another more social right is the right to education and social security.

What are collective rights?

Collective rights are concerned with the rights of a group of individuals. A prominent example is the 1948 Genocide Convention, which imposes an obligation on states to prevent and punish genocidal acts. Another collective right for groups of individuals is the right to self-determination. The ICCPR is furthermore concerned with the protection for minorities, either ethnic or religious. A third generation of rights are less concrete and material, these contain the right to peace and development. A good example is the adaptation of the Declaration on the Right to Development adopted by the UN General Assembly. These rights are more vague because it is not so clear what they entail and how they can be forced upon states.

9.4 What are human rights and responsibilities for private acts?

Although international human rights law can only be violated by states, the obligation of states can still be triggered by the acts of private individuals. In certain cases, the state is for example obliged to offer protection to private individuals, such as the protection against torture or the protection against human degrading acts (this is concluded by the European Court of Human Rights). Such protection can be necessary in the case of religious acts.

9.5 How are human rights enforced by the United Nations?

What are the charter-based human rights mechanisms?

The Human Rights Commission, which was created by the Economic and Social Council (ECOSOS) was installed to improve the respect for the human rights standards by UN members. It installed working groups on specific human rights topics and installs a Special Rapporteur for arbitrary executions (among other things). This commission was replaced in 2006 by the Human Rights Council (HRC), which aims to protect human rights around the world, it is under the General Assembly and has 47 elected members. However, this commission is critized for being too much politically influenced. Lastly, there is a High Commissioner for Human Rights whose position it is to provide advice on human rights issues.

What are treaty-based enforcement mechanisms?

Besides charter-based mechanisms the United Nations (UN) has installed certain treaty-based mechanisms to enforce the protection of human rights. The most prominent committee in this respect is the Human Rights Committee (CCPR),which is endowed with overseeing the implementation and obligations of the ICCPR. Complaints between states can also be brought before the CCPR, but the CCPR accepts procedures for individual complaints as well. Although its conclusions on its 115 members are not binding they are generally well followed.

9.6 What are the Regional Systems for the protection of human rights?

The origins of the Council of Europe can be traced back to 1949 and was installed to improve the collaboration between governments after the disasters in and after the Second World War. The first and biggest achievement was the European Convention of Human Rights (1950) which remains important today with 47 members. Important concepts such as the prohibition of slavery and individual liberty are contained in the Convention. The European Court of Human Rights (ECtHR) is endowed with enforcing compliance for the Convention. Normally, states will not sue each other before this court. However, there are some examples of intergovernmental complaints. With the most prominent recent one, the complaint by Ukraine against Russia in reaction to the actions of Russia in the Crimea area.

More important for the ECtHR are individual complaints. In one year it has sometimes had up to 160,000 cases. The Court will however only accept a case if the individual has no more legal options under the domestic legal systems. Normally, decisions by the ECtHR are legally binding. As we discussed earlier international law often involves a significant portion of law making and this is no less true for the interpretation of the ECHR, there is usually quite some margin of appreciation offer by the ECtHR towards a state, especially concerning sensitive issues such as same-sex marriage.

Another important treaty, as discussed earlier, is the Charter of Fundamental Rights of the European Union, this is addressed both at states and individuals.

What are the human rights protection in the Americas?

The most important humanitarian document in the Americas is the American Convention on Human Rights, which was adopted by the Organization of Amerin States (OAS) in 1969. This convention has 25 member states and is based on the American Declaration of the Rights and Duties of Man (1948). Similar to the European system the American Convention is overseen by a Commission: the Commission of Human Rights and the Inter-American Court of Human Rights.

What are the Human Rights protections in Africa?

The most important humanitarian document in Africe is the 1981 Banjul Charter on Human and Peoples’ Rights which was installed by the Organisation of African Unity. It has 55 member states and contains several rights, social and cultural rights, collective rights, but also economic, civil and political rights. It can receive complaints by states as well as by individuals and it is overseen by the African Commission on Human and Peoples’ Rights.

9.7 What is the territorial scope of human rights treaties?

The territorial scope of human rights treaties is a highly debated issue under international human rights law. If an individual is not present in the territory of a state while his rights are violated a treaty is said to have an extraterritorial effect. In some, but not all, treaties the geographical scope is described. For example, in article 2 of the ICCPR it is described that ‘all individuals within its territory are subject to its jurisdiction’. The US was historically able to uphold facilities such as Guantanamo Bay because it argued that its treaties only apply within the United States. The ICJ found that the ICCPR is not meant to apply only to national territory.

In 2011 the Court established certain principles upon which jurisdiction can be determined. First, acts that are conducted by state officials such as a consular or state representative is a circumstance under which extraterritorial conduct falls under the national jurisdiction. Second, if a state ´through the consent, invitation or acquiescence of the Government of that territory exercises all or some of the public powers normally to be exercised by that Government … as long as the acts in question are attributable to it rather than to the territorial State. Third, jurisdiction should be exercised when the individual is in custody in another country. Fourth jurisdiction applies when a state has ´effective control of an area´.

9.8 What are the human rights in times of public emergencies?

Although in principle the human fundamental rights do not change in times of war, in practice they will not apply in their original meaning either. This will be described in more detail in chapter 14. In some circumstances a state may be allowed to temporarily suspend certain provisions of human rights in the times of a war. This can only be used in times of actual and/or imminent threats to the national security of a state which is a threat at least to the ‘life of the nation ‘or the ‘organized life of the community of which the State is composed’. In other words, there are certain circumstances under which a state deems it necessary to temporarily abolish the human rights it otherwise respects, however this must be defended and communicated to other parties of the convention.

What is the role of international environmental law? - Chapter 10 (1)

10.1 Introduction

The origins of environmental law are historically separate from international law and the predominant regulations came into place in 60s and 70s. Originally, international law was more focused on the environment as a natural resource, such as the resource of water and the costs of pollution but less at the protection of the environment as such. This gap is filled by international environmental law. Nevertheless, there is an overlap between environmental international law and international law. The environment was defined by the ICJ as ‘the living space, the quality of life and the very health of human beings, including generations unborn’.

10.2 What is the role of Stockholm and Rio in International environmental law?

On of the most important conferences on the environment was the 1972 Stockholm Conference on the Human Environment, in this conference the Declaration on the Human Environment was adopted. Another important conference was the 1992 Rio Conference on Environmental and Development (sometimes referred to as the Earth Summit). The latter had as its main aim to find international collaboration on sustainable development.

There is always a tension between the states freedom to exploit their own resources and the protection of the international society as governed by international environmental law. To regulate this tension several principles were formulated in the Rio conference and a plan of action was established, the Agenda 21 action plan. Every 10 years there is a ‘Rio Summit’. The most recent one was in 2012, which set out the agenda for 2015 to 2030 which has ambitious goals such as ending poverty, conserving marine life and preventing the loss of biodiversity. More general goals are pronounced as well, such as international collaboration.

10.3 What are the sources of international environmental law?

Most of the content of international environmental law is formed by treaties. These treaties are mainly aimed at formulating collective goals and a framework, but not to in detail regulate every single issue. The most prominent convention is the 1992 UN Framework Convention on Climate Change (UNFCCC), where only certain substantive provisions are contained, one example is that: ’developed countries should take the lead in combating climate change and the adverse effects thereof’.

The role of customary international law is quite limited, but a couple of legal principles from customary law exist, such as the no harm principle (due diligence) or the obligation of notification in the case of transborder harm. A more important contribution is provided by international courts, such as the Permanent Court of Arbitration and the ICJ. But also from the ECtHR , the Tribunal for the Law of the Sea (ITLOS) and the World Trade Organization (WTO). Furthermore, there is a prominent role for soft law instruments.

10.4 What are the basic principles of international environmental law?

One of the most prominent principles stems from the Stockholm Declaration which prescribes that ‘States have the sovereign right to exploit their own resources pursuant to their own environmental policies’, however states are also expected to ‘ensure that activities within their jurisdiction’ are controlled and do not damage the environment of other States beyond their jurisdiction. This is also called the no harm principle. Historically this was indeed limited to transborder harm, however more recently the ICJ has expanded this notion to general prevention of environmental harm. However, due diligence is mostly concerned with the protection of harm towards other countries, it has been confirmed in several court cases that a country is obliged to prevent harm to other countries, this prevention also involves an Environmental Impact Assessment (EIA) before taking an action. This follows from customary international law. According to the precautionary approach states are obliged to take precautionary measures even if the results are uncertain and the harm expected is not grave.

What are the principles to ensure a balanced approach to environment protection?

The balancing principles are mostly concerned with a fair balance between on the one hand the protection of the environment and on the other hand a list of other interests. This results for example in the polluter-pays principle. Another principle is the common but differentiated responsibilities (CBDR) this is concerned with the interests of developing states. Which can be seen as a trade-off with the first principle, in terms of capability and ability.

The principle inter-generational equity, is conserved with those generations that are not alive yet. Generations of the future are protected by the Rio Declaration Article 3. But the Whaling Convention as discussed before is a good example as well.

The principle of participation describes that the interests of all states should be heard and taken into account. This principle among other things aims to protect indigenous citizens.

10.5 What is the substantive regulation of international environmental law?

As one can image a primal concern of environmental law is the protection of the air and the atmosphere. It was not until the 70s that international awareness and concerns arose for air-pollution and the release of toxic gases. In 1979 the Convention on Long-Range Transboundary Air Pollution (LRTAP) was installed. The LRTAP stipulates rules regarding air pollutions, in its protocols limits to this pollution are prescribed.

There is substantive regulation for specific environmental concern especially concerned air pollution, for this purpose the Vienna Convention on the Protection of the Ozone Layer was established as a framework in 1985, which was concerned with limiting the ozone depletion. Of course one of the most actual discussion is that on general climate change, to this end the UNFCCC was adopted in 1992. The Convention has 197 parties and is aimed at limiting greenhouse gases, among other thing. Furthermore, it was established in the 1997 Kyoto Protocol that developed country should take the lead in combating climate change. An inherent problem, is that this limits the obligations of some of the major polluters such as China, Indonesia and Brazil. The 2015 Paris Agreement stipulated that the ‘global average temperature increase should be limited to 1.5 degrees Celsius. However, there is no mechanism in place to enforce compliance and no fines are imposed in case a country fails to accomplish its voluntary contribution.

How is the nature conserved under international law?

Several regulations and treaties exist to protect the nature, some of those treaties and conventions will be discussed in this paragraph. One example is the Antarctic Treaty System (ATS) aimed at protection the environment in Antarctica, as long as this treaty is in force no country or sovereign state can claim territory. The purpose is to protect the scientific interests of this area.

Another example is the Convention Concerning the Protection of the World Cultural and Natural Heritage, also known as the WHC (World Heritage Convention). This convention is aimed at protection heritage sites that have international/universal worth. In 2016 the list contained over a 1000 sites, approximately 20% of these sites were natural properties. The World Heritage Committee oversees the protection of these sites.

The 1971 Convention on Wetlands of International Importance protects wetlands all over the world. Wetlands are generally considered to be a great source of natural variety and biodiversity. Furthermore they have an important environmental role. Although national sovereign states keep territorial sovereignty in these areas there conduct is bound to certain regulations. If a wetland is included in the WHC list for example it is required to preserve the wetland.

There are also several treaties aimed at preventing desertification, for example the UN Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa. Furthermore, the 1992 Convention on Biological Diversity, a part of the 1992 Rio Convention was aimed at preserving biological diversity. The CBD leaves a large margin of discretion to individual states, it is mainly aimed at containing the risks posed by Genetically Modified Organisms.

How are hazardous substances regulated?

Following from the international threat of nuclear weapons they make for a good subject for international regulation. The International Atomic Energy Agency (IAEA), which was set up in 1957 has overseen the development of nuclear energy and aims to make it a peaceful process. As we often see in international law, regulation is adopted in a reaction to international disasters. This is no different for the 1986 Convention on Early Notification of a Nuclear Accident or Radiological Emergency and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, both were a reaction to the 1986 Chernobyl disaster.

Military use of nuclear energy is regulated by several treaties, one example is the 1963 Nuclear Test Ban Treaty, which stipulates that tests have to be conducted outside of Antarctica, underground and without causing pollution. This will be discussed in more detail later in this chapter.

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal regulates the transport of dangerous goods and limits the disposal of toxic waste in developing countries. The convention is a framework that resulted from the 1992 Rio Summit.

10.6 How is international environmental law implemented and enforced?

What makes international environmental law significantly different from international law is that the regular approach to its violations do not work as well. It may be hard for a country to effectively compensate other countries for damages to the environment. What is appropriate in terms of compensation and how can the harm be really measured? The law does not provide us with a clear cut answer yet, it has however stated that ‘the fact that environmental damage is irreparable or unquantifiable shall not result in exemption from compensation’. It is unclear whether the erga omnes obligation applies (see chapter 2).

In certain cases, non-compliance with international environmental law is not the result of ill will or negligence and it may be more appropriate to provide assistance to a state than fining its government or imposing obligations. It should furthermore be noted that there is no international environmental law court, which is an additional complicating factor.

As such, any disagreements towards environmental issues are mostly handled by the ICJ, the ECtHR and the WTO, however these courts do not necessarily specialize in environmental law.

What is meant by international economic law? - Chapter 11

International law aims to regulate the collaboration and conduct between sovereign states, while simultaneously leaving a lot of discretion to those states. As we will see in this chapter, the most important bodies are the World Trade Organisation (WTO) and the International Monetary Fund (IMF). The International Court of Justice (ICJ) also plays a vital role in creating law. The general freedom that international economic law offers is limited in practice by the myriad of treaties and conventions states declare between each other. The basis of contemporary international economic law can be traced back to the 1944 Bretton Woods conference in the US. The aim was a free flow of economic transactions. In the aforementioned conference the IMF was created, as well as the International Bank for Reconstruction and Development (the World Bank) and the General Trade Agreement on Tariffs and Trade (GATT). The latter has recently been replaced by the WTO. The Organisation for Economic Cooperation and Development (OECD) plays an important role in the collaboration between modern Western states. Other important groups and institutions are the the G20 and the World Health Organisation (WHO).

What is the capitalist basis of the Bretton Woods system?

The foundations of the Bretton Woods system can be traced back to the thoughts and works of Adam Smith. Other important thinkers were John Stuart Mill (who coined the principle of comparative advantage) and David Ricardo. The Bretton Woods system rests on the premise that the whole international economic system, including developing countries, is better off when all states focus on one specialty. This idea is mostly based on the concept of opportunity costs. David Ricardo in this respect applied Mill’s principle of comparative advantage towards international trades and he concluded that all countries are better off if they specialize, i.e. France makes wine, England clothes, etc. This advantage can be best exploited if there is free trade. Therefore, in the 60s and 70s states aimed to establish a New International Economic Order. Nowadays, there is more focus on a fair distribution of welfare.

What is the function of the WTO and international trade?

The WTO is mainly aimed at bringing its 164 members together to facilitate the trade of goods and services and oversee intellectual property rights. The development of the WTO centers around several rounds of multilateral trade negotiations. This was primarily aimed at tariffs, but over time other important economic principles such as dumping and subsidies were regulated.

What are the main principles of regulation in the WTO?

Several main principles guide the processes in the WTO. First and foremost, the non-discrimination principle aims to create equal competition for local and foreign goods and services. This principle is translated into two guiding obligations: the most favoured nation treatment and the obligation of national treatment. The former means that a state has to provide the same privileges to different countries if it concludes similar treaties between those countries. The national treatment obligation means that national products should be handled the same as international goods.

A more difficult issue is the treatment of developing countries, which potentially may conflict with the principle of non-discrimination given the special needs of those countries.

What is the substantive regulation in the WTO?

One of the most important documents for the WTO is the 1994 General Agreement on Tariffs and Trade (GATT), which is aimed to liberalize international trade. The GATT is not meant to prohibit any and all tariffs by states, but merely aims to impose certain ceilings on these tariffs and ensure that the imposed tariffs are not excessive. Another important agreement is the General Agreement on Trade in Services (GATS), which covers all supplied services except for those supplied by governments. The GATS among other things stipulates that no quantitative restrictions may be imposed and it regulates the telecommunication and financial services. Intellectual Property Rights are regulated in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). All sorts of intellectual property rights are described in the agreement, such as copyrights, trademarks, several types of designs.

As one might imagine, due to the sometimes conflicting economic interests disputes may arise. These disputes are handled by the Dispute Settlement Body (DSB). Decisions by the DSB are established in a relatively short time period and are of a binding nature. If a state nevertheless fails to comply with its decisions, the DSB is endowed with the capacity to take punishing countermeasures. One example is that when the European Community placed a ban on the import of beef that was fed hormones, the DSB authorized the US and Canada to implement countermeasures. The reason given was that the EC failed to comply with the decision of the DSB to delete the ban.

Some trade agreements have a regional instead of an international character. Examples are the NAFTA (North American Trade Agreement) and the Mercado Común del Sur (MERCOSUR). In actuality it may be hard to find a country or area that is not involved in such regional trade agreements.

What is the role of international monetary law?

The International Monetary Fund (IMF) is the primary body in international monetary law. It has more than 180 member states and was established in reaction to international distress. In the 20s and 30s the economy was stagnating and unemployment was rising at an alarming rate. The IMF aims to promote international collaboration on a monetary level. One practical way the IMF enforces this is by imposing quotas. The height of these quota depends on the country’s share in the world economy. The US has the highest share with 16.5%. These quotas are determined every five years. In this paragraph the approach of the IMF towards issues such as lending conditionality and the exchange rate will be discussed. We will turn briefly towards the World Bank and the EU monetary system.

What are exchange rate policies?

Originally every countries exchange rate was directly linked to gold or the American dollar. The latter was in turn linked to gold. However, in 1971 the United States stepped away from the Gold Standard, which resulted in a more volatile exchange rate. Nevertheless, states still have an obligation to link their exchange rates. The 1976 Amended Articles of Agreement stipulates that every state needs to:

  1. Endeavor to direct its economic and financial policies toward the objective of fostering orderly economic growth with reasonable price stability, with due regard to its circumstances;

  2. Seek to promote stability by fostering orderly underlying economic and financial conditions and a monetary system that does not tend to produce erratic disruptions;

  3. Avoid manipulating exchange rates or the international monetary system in order to prevent effective balance of payments adjustment or to gain an unfair competitive advantage over other members; and

  4. Follow exchange policies compatible with the undertakings under this Section.

For some time western countries have accused China of violating principle 3, claiming that China artificially and purposely devaluated the yuan.

The IMF oversees compliance of the states’ obligations in relation to their exchange rates by examining the fiscal and monetary policies of states. In this process the institution is required to respect the states sovereignty and independence.

What is the principle conditionality and how are lending arrangements made?

Arguably, the principle role of the IMF is to provide states with loans. The International Monetary Fund often functions as a lender of last resort. These funds are not provided at the whim of any state, as loans are subject to conditions:

  1. The member's use of the general resources of the Fund would be in accordance with the provisions of this Agreement and the policies adopted under them;

  2. The member represents that it has a need to make the purchase because of its balance of payments or its reserve position or developments in its reserves;

  3. The proposed purchase would be a reserve tranche purchase, or would not cause the Fund's holdings of the purchasing member's currency to exceed two hundred percent of its quota;

  4. The Fund has not previously declared under Section 5 of this Article, Article VI, Section 1, or Article XXVI, Section 2(a) that the member desiring to purchase is ineligible to use the general resources of the Fund.

The first principle refers to conditionality, which simply means that the issuing of a loan by the IMF is subject to certain conditions. In practice loans are issued on the basis of a letter of intent, which the state seeking the loan draws up for the IMF. This letter has no binding nature but should be seen as political intention. This has recently been much debated after the crisis in Greece. The loans provided by the IMF, the European Central Bank (ECB) and the EU Commission were based on stringent conditions, which led to protests by Greek politicians.

What is the World Bank and how does it provide financial help to poor states?

The World Bank, officially called the International Bank for Reconstruction and Development, helps poor countries with financial aid. When the World Bank was created together with the IMF the idea was that the IMF would provide short and midterm aid, while the World Bank would provide loans of a more long term nature. In practice however, the distinction is not so clear anymore.

What is the monetary system in the EU?

The European Union started with 11 members, which implemented the Euro as their valuta in 1999. However, the European Monetary System (EMS) stems from before this period and can be traced back to as early as 1979. The principle aim was to create more exchange rate stability. The UK, Denmark and Sweden chose to stay out of the system. A reason for not joining the system can be that a state essentially has to give up their autonomy in terms of control over the interest rate and supply of money. Furthermore, a state is responsible for its own financial obligations, which is called the no bail out principle. As we have seen in the recent economic crisis this principle is not always upheld .

What is the role of international investment law?

Investments play an important role in economic growth. Under international law, the states commonly enjoy much discretion. Since states can individually decide where and how they invest their money, the purpose of international investment law is to guide the trade-off between state sovereignty and the rights enjoyed by foreign investors.

What is the expropriation and protection of foreign investors under customary international law?

International investment law is overseen by treaties and by customary law. The term expropriation means that a state claims private property for use of a common interest, which is also called nationalization. Expropriation runs counter to the interests of foreign investors. The term also covers acts by the state that in effect make an economic asset worthless or useless. However, in practice there are a lot of requirements to be met before something is characterized as nationalization.

Customary international law stipulates a minimum standard of protection for foreign investors, but it does allow a state to nationalize property under certain conditions. Expropriation needs to benefit the community as a whole and not just the state. Usually, developed states provide full compensation for expropriation. Just and full compensation is the general principle in customary international law, but this principle is not always followed. The compensation needs to reflect the full market value of the investment in question.

What is the role of treaties on investment protection?

Many states conclude bilateral investment treaties (BIT) among each other. In total there are a little under three thousand BIT treaties. In such treaties the term investment is normally defined as generally as possible. They usually follow a similar protocol, aimed to ensure fair and equitable treatment and full protection and security. Expropriation is generally not forbidden on the condition that it is done in a non-discriminatory manner, but exceptions are provided for exceptional circumstances. The European Convention on Human Rights also provides several provisions against expropriation.

How are disputes handled?

If disputes arise as a result of BITs, the first and most prominent body to handle it is the International Centre for Settlement of Investment Disputes (ICSID). Its decisions are binding. The UN Commission on International Trade Law also settles disputes.

How are disputes handled in a peaceful manner under international law? - Chapter 12

Since the primary aim of international law is to protect peaceful international relations, the settlement of disputes in a peaceful manner is vital. As we will see in this chapter there are several tools available to solve disputes. Diplomatic solutions are usually preferred over other options. The International Court of Justice (ICJ) is the only international court that has the power to handle disputes with an international nature. Given the sovereignty of states this jurisdiction has to be granted to the Court by the states. There are, however, some other more specialized courts that can also handle certain cases.

What are the non-adjudicatory means of settling an international dispute?

First of all, non-adjudicatory ways of handling a dispute are all ways of handling a dispute that involve political or diplomatic solutions. States generally prefer this means of settling disputes. The most common way to handle a dispute in a non-adjudicatory way is to engage in negotiations. Members of the United Nations have committed themselves to negotiation in case of conflicts. These negotiations can happen with good office, which means that a third, neutral party mediates in the conflict. In some cases parties may install a commission of inquiry to help to come to a solution. In other cases an international organization like the UN Human Rights Council will play a role in mediation.

One tool that is used to come to a solution is conciliation, which means that a non-binding document will be produced to investigate the issue. This can for example be used in the case of a dispute about continental shelves.

The UN is a body that is particularly experienced with dispute settlements. The Security Council is usually an important party in this respect, its primary role being to maintain international peace. As for the UN, most rules regarding the settlement of disputes are contained in the UN Charter. Pursuant to article 33, for example, states are obliged to start with seeking a settlement between themselves, but article 34 stipulates that the Council may on its own initiative seek to investigate an issue that is important for international peace or an issue that may cause an international dispute. Following from article 37 and 38 the parties have to refer the case to the UN if they fail to reach an agreement, upon which the Council will usually provide recommendations to solve the issue. These recommendations are not legally binding.

The UN General Assembly also plays a role in finding peaceful solutions to disputes, but it can only provide non-binding recommendations that do not result in a legal obligation.

What is the role of arbitration in the peaceful settlement of disputes?

In the category of adjudicatory settlement of disputes arbitration is an important method. Arbitration by a commission, for example, led to the solving of the American Civil War dispute between the US and Britain. The Pacific Settlement of International Disputes created the Permanent Court of Arbitration (PCA) with judges to assist in the settlement of international disputes. It can also be used for mixed disputes, i.e. disputes with both states and individuals as relevant parties.

These adjudicatory settlement procedures always require consent of all parties. Although it is a quicker method that provides more flexibility, parties sometimes refuse to accept the outcome of the adjudicatory process and there is no true legal consistency. On the other hand, the confidentiality that can be offered provides the parties an advantage if the case is sensitive (which international conflicts often are).

What is the role of the International Court of Justice in the peaceful settlement of international disputes?

As mentioned earlier the ICJ is a unique institution in the sense that it is the only party that has jurisdiction to deal with international disputes. As such, it has also been an important party in the creation of law. The Court is based in the Hague. Judges are appointed by the 5 members of the Security Council and must be of exemplary moral character. In the appointment of the 15 judges geographical distribution is taken into account. Usually all 15 judges are involved with the processes and at times several specialized judges are temporarily appointed to a case. Judgments are legally binding and are made by majority vote.

What is the access to the Court in contentious cases?

Article 34 regulates the access to the Court and it stipulates that only states are allowed before the Court, i.e. the court does not allowed so-called mixed cases. Access to the Court is regulated by article 35 of the ICJ Statute. A distinction should be made between access and jurisdiction. Access does not necessarily provide jurisdiction. Membership of the UN is not necessary for access to the Court. Access in practice is hardly ever an issue, but when it is such as in the Corfu Channel case, the Security Council may grant a state access nonetheless.

What is the consent to jurisdiction in contentious cases?

Although there has been some early talk of universal jurisdiction by the Court, this proved to be impractical at best and more likely impossible. Therefore the jurisdiction of the Court is based on the condition of consent of the parties involved. This underlines the earlier discussed distinction between access and jurisdiction. The Court frequently declines its exercise of jurisdiction if one of the parties does not consent. The Court will usually only refuse to exercise its jurisdiction if the consent of the party involved is essential, so sometimes the case can proceed without third-party consent.

Consent can be expressed in three ways:

  1. Explicit agreement;

  2. A treaty, or;

  3. A declaration under an optional clause.

The first option, voluntary referrals often prevent jurisdictional issues from occurring. The second option means that consent is given by means of the treaty. The third option, the optional clause, means that a state usually consents to the jurisdiction of the Court before an issue arises. The mere fact that a state does not disagree with the proceedings before the Court does not suffice as consent (this is the forum prorogatum doctrine).

What is the power of the ICJ to indicate provisional measures?

In short this means that the Court can prevent the conduct of certain behavior if this conduct would mean that the decision the Court finally makes would become irrelevant, this is an exceptional step that has been used very little by the Court. The provision is contained in article 41 and has been the subject of quite some debate, it is unclear whether provisional measures are legally binding or not.

What is the effect of the Court’s decisions?

Due to article 60 of the ICJ Statute there can be no appeal to the Court’s decisions. The judgment of the Court is only binding on the parties involved and cannot have a legally binding obligation on third parties not directly involved. Furthermore, article 94 of the Statute stipulates that members have the obligation to comply with the ICJ Court’s decisions.

What is the relationship between the Court and the Security Council?

In some cases both the ICJ and the Security Council may become involved in an international dispute. In those cases this does not necessarily mean that one of the parties has to drop the dispute, because both parties may different jurisdictions and as such do not have to necessarily interfere with each other’s affairs.

What is the role of advisory opinions?

Article 65 of the ICJ Statute stipulates that the Court can give an advisory opinion on ‘any legal question’. The General Assembly or the Security Council may request such opinions, and other bodies can in certain circumstances seek help of the Court as well. They do, however, need to be authorized by the General Assembly. These opinions are by no means legally binding. Consent is as an exception not required in this case, some parties in the past have refused to abide by this principle and asked the court not to exercise its jurisdiction in a certain case. The Court, however, found that issuing an opinion as advice is not the same as exercising jurisdiction.

What are international courts and tribunals with a specialized mandate in peaceful settlements of international disputes?

As discussed earlier, certain courts and tribunals have a special mandate to solve international disputes. A prominent example is the International Tribunal for the Law of the Sea (ITLOS). Judgments by the ITLOS are legally binding and final, which means there is no room for appeal. Another body with such jurisdiction in adjudicatory disputes is the Dispute Settlement Body (DSB), which is distinguished because it can make speedy and flexible decisions. For criminal issues, an important body is the International Criminal Court (ICC), which is based in the Hague. A distinguishing feature of this court is that it may on its own initiative start an investigation towards international crimes.

What are the international regulations on the use of force? - Chapter 13 (1)

13.1 Introduction

Although the main purpose of international law is to retain peace and stability there are certain circumstances where deviations from peace are as a matter of fact allowed. In this chapter the rules regarding the use of force will be discussed, when is a country allowed to pick up arms? This is regulated by the jus ad bellum principle as we will come to see in this chapter. The rules regarding armed force are contained in the UN Charter and customary international law, although the principles in these sources are the same. Article 2(4) forbids states from using force and only two exceptions exist to this rule, one is the situation where the use of force is explicitly allowed by the UN Security Council. The second situation were force is allowed is if they are under attack, i.e. the right to defend yourself applies to a state as well.

13.2 How does the UN Charter relate to the prohibition on the use of force?

The main aim of the United Nations is to prevent the use of force. The history of the prevention of the use of armed forces reaches far back and several attempts have been made, some more successful than the others. Again as we see in many parts of international law, the Second World War was a pivotal moment in the regulation of armed forces. Although the UN aims to limit the use of force, it became clear after the Second World War that to keep the peace sometimes force was needed. The UN Charter aims to systemize and collectivize when and how to fight, the general principle that guides all other principles is the interest of the international community.

What is the prohibition on the use of force?

As discussed in the introduction of this chapter, this prohibition is contained in article 2(4) of the Charter. What exactly does the concept of force mean however? This has been a topic of debate since the Charter was installed in 1945, some consensus has now been formed that force means armed measures. Nevertheless, recently in 2013 it was found that cybercrime attacks can entail the use of force as well. An important refinement to this consent is that article 2(4) does not include the invited use of force. I.e. as we discussed in chapter 7 valid consent prevents wrongful conduct. A good example is the presence of NATO forces in Afghanistan. Consent can be dubious in the case of civil wars however.

13.3 What is the role of the Security Council and how does it help maintain international peace and security?

As we have discussed in earlier chapters the UN Charter gives a unique position to the Security Council, however only several states have a position in the Council (as little as 15). 9 members need to agree with a measure for it to go through. It should be noted, however, that any of the five prominent members: China, France, Russia, UK and the US are allowed to block a proposal.

Usually the Council imposes measure that are non-coercive and non-binding, but if it finds that these measures do not result in any progress they may adopt binding measures.

What are determinations under Article 39?

It is contained in Article 39 that ´any threat to the peace, breach of the peace, or act of aggression´ should be acknowledged by the Council. The concept of ´a threat to peace´ is of course quite broad and the Council has a significant amount of discretion to determine what this entails. Examples are terrorism, violation of human or democratic principles or other crises.

What are provisional measures under Article 40?

Article 40 enables the Council to oblige parties involved in a conflict to follow provisions in order to ‘prevent an aggravation of the situation’. Such measures can be a cease of fire order or another to withdraw completely from a country.

What are non-forcible measures under Article 41?

This article stipulates that the Council has the mandate to resolve matters to maintain the peace and order in the international community. The Council may order members of the UN to implement such measures, examples are the interruption of trains or post. The Council has access to an array of non-coercive measures it can implement to maintain international peace. Again, wide discretion is enjoyed by the Council, it can for example call upon UN members to impose trade restriction on certain countries.

What is enforcement under Article 42?

If the measures imposed under Article 41 prove insufficient the Council may move on to more coercive measures ‘such as action by air, sea, or land forces as may be necessary’. Technically the Council can requires UN members to put armed forces at the disposal of the Council, in practice it never does so and it relies on the provision of voluntary forces. Article 42 has historically not been used a lot until the emergent Cold War. In this conflict UN peacekeeping forces were formed over which the UN Council now has a mandate. Since then it has interfered in several emerging issues. Consent for interference under Article 42 is not necessary but will in practice often be sought nonetheless.

What are the limits on the Security Council’s authority?

Although the Council enjoys a wide margin of discretion and has a large mandate, this mandate is not unlimited. Any interference must comply with human rights, refugee law and international humanitarian law. Furthermore, the Council is not allowed to disregard jus cogens norms.

How should the Security Council resolutions be interpreted?

It can be unclear whether the resolutions of the Security Council should be regarded as legally binding at times, it is usually dependent on the language used. Terms as decide or demand means a resolution is binding, whereas non-binding resolutions contain language like ‘recommend’ or ‘appeal’. Some debates has arisen when countries acted under the implied authorization of the UN Council such as the invasion of US and British troops in Iraq. Because Iraq had for a long time failed to meet its obligations towards the UN the US and the UK government interpreted this as them being allowed to invade Iraq, however three of the prominent members of the Council disagreed.

13.4 What is the status of unilateral use of force by states?

What is the right so self-defence?

As discussed earlier this is the first exception to article 2(4). This exception is contained in article 51 of the Charter:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Perhaps this exception is the most contested concept in the whole of international law. Because of the importance of this concept, we will discuss several sides of this issue in this paragraph, what exactly is the notion of an armed attack? how can self-defence be initiated and the notion of proportionality and necessity will be discussed.

What is the notion of an armed attack?

The right to self defence can only be triggered by an armed attack. A certain level of attack is required in order for it to trigger the right for counterforce. This is not triggered by less grave forms of force. In general acts need to cause human fatalities, or massive destruction. If cyberspace attacks cause these damages they may be used as a reason for self defence. A recent example is, again, the attack of Russia on the Crimea area. Ukrain was found to be allowed to use counterforce. The accumulation of events doctrine stipulates that several acts together can constitute an armed attack.

Can private actors conduct armed attacks as mentioned in article 51? The Council has held in the 9/11 attacks that the attack could be seen as an armed attack even though the state did not claim the attacks. Self-defence may thus be triggered if the host state is not able or unwilling to prevent terrorist attacks.

How should self defence be initiated?

If a state suspects an armed attack it is allowed to take precautionary measures, however, it is not allowed to resort to force until the attack actually takes place. I.e. self defence is not allowed under the mere threat of an armed attack. But, there are exceptions to this exception. In some cases anticipatory self-defence against an imminent threat is allowed. The circumstances must be exceptional to allow this and preventive self-defence is not allowed.

What is the role of necessity and proportionality?

If self defence is not necessary and/or proportionate it will be regarded as illegal. In other words, if less forceful countermeasures are available a state is legally obliged to take that route. The use of force can only be used in the case of last resort. Proportionality demands from the victim of an armed attack to balance the history of its conduct the Caroline formula prescribes: that the victim should show that it ‘did nothing unreasonable or excessive; since the act, justified by the necessityof self-defence, must be limited by that necessity and kept clearly within it’. Plenty of debate surrounds the issue of proportionality and there is no consensus what falls within and what falsl without this principle. This is especially difficult in the case of terrorist attacks.

How can collective self defence be exercised?

As can be read in Article 51 collective self defence is allowed as well. And the state participating in the collective self defence does not itself have to be attacked. However, the attacked state must declare itself as an attacked state and officially request help from the assisting states.

What is the relationship between the Security Council and the exercise of self defence?

The right to self defence can only be exercised until the Council has found and undertaken the appropriate measure to re-establish international peace and order.

13.5 What is the contentious use of force?

A central question under international law is whether states are allowed to free its citizens that are held in custody in other countries. It is clear that any rescue operations has to follow the principles of proportionality and necessity, furthermore they must always be in response to an armed attack. Furthermore, a genuine threat to the well-being of the citizens must be existent. In any case the actions may not go beyond what is necessary to free the prisoners.

What is the role of humanitarian intervention in the right to self defence?

The position of humanitarian interventions that are not supported by the UN Council is unclear. Although, one might intuitively support these actions there is some consensus that those actions are generally unlawful. Some state representative have referred to the Responsibility to Protect (R2P) as a justification for humanitarian intervention, although useful as a framework it does not provide states with legality.

What are the laws on armed conflicts? - Chapter 14 (1)

14.1 Introduction

In this chapter the guiding principles and regulations on armed conflicts will be discussed. This part of international law is a balancing act between humanitarian considerations on the one hand and pure necessity on the other hand. The principles described in this chapter only applies to times of armed conflict and makes a distinction between the conflicts that have an international and those that have a national character. Private individuals have a different status in times of armed conflict than those in the military. Under all circumstances civilians must be protected, whereas combatants may be detained during the conflict. The latter provision helps prevent the use of unnecessary harm to combatants. In principle human rights do not cease to apply, but they must at times be read in conjunction with the principles contained the law of armed conflict as we will come to see in this chapter.

It is seen as a very pragmatic type of law.

14.2 What are the sources of international humanitarian law?

Over time the law of armed conflict had to be adjusted to new types of warfare. The current guiding principles of international humanitarian law can be traced back to the American Civil War (1861 until 1865). The treaties in humanitarian law can be divided in two categories: Geneva law and Hague law. The first type aims to protect vulnerable groups in armed conflicts whereas the latter is aimed at the methods of warfare and the process of an armed conflict. Some conventions only apply if all the parties involved in the conflict are parties to the convention as well (clausula si omnes). However, more recent conventions generally stipulate that the convention applies as well when the party is in conflict with a non-member. Of course the rules of the convention in those situations only apply to the party who takes part in the convention. Most of the treaties reflect customary international law.

14.3 How is international humanitarian law applied?

In the current days of the 21st century there is no more clear distinction between times of war and times of peace, contrary to historic international law. Since the adoption of the UN Charter after the Second World War declarations of war have been very rare. The International Criminal Tribunal for the Former Yugoslavia (ICTY) defined an armed conflict as: ‘whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such group within a State’.

What is the status of international armed conflicts?

The Geneva Convention applies to all states of war or armed conflict between two or more states. Any situation that involves the intervention of armed forces can be seen as an armed conflict, whether both or neither of the states officially recognize the state of conflict. These situations can be the result of state troops as well as armed troops of individuals. Occupation of areas is also covered by the Convention, a territory is considered to be occupied when here is effective control by another entity. In historic times, armed conflicts or periods of war came to an end with a declaration of peace or a treaty. However, this is becoming more and more uncommon. For example, in the recent conflict with Gaddafi there has never been an official declaration of peace.

What is the status of non-international armed conflicts?

Conflicts between a state and private actors or between private actors alone can since 1949 also be considered as an armed conflict under international law. For those situations to be considered as an armed conflict a certain minimum threshold of violence has to be surpassed and both parties have to be ‘militarily organized’ (see article 3). The latter condition can sometimes be hard to qualify. One may imagine that the concept of non-international armed conflict is widely applicable, however, in practice this is very limited. A recent example where this has been declared is the Arab Spring and it is usual the situation resembles some sort of civil war.

What are transnational armed conflicts?

The concept of transnational armed conflicts applies when there is a dispute between a state and (a group of) private actor(s) in a different state. This is for example relevant in the recent attempts to halt the Islamitic State by the United States. The question in these disputes arise: Is it an international or non-international dispute? The first option as for the characterization of the dispute would be that the geographical pretense of the private actors determines jurisdiction, in that situation the national government needs to consent to the use of force. The second option is that transnational disputes is of a non-international character as long as the foreign state does not use force against a state actor. In this characterization the dispute is of a non-international character as long as the state of the private actors is not linked to its actions.

14.4 What is the status of battlefields in international armed conflicts?

In this paragraph the status and rights of private individuals and combatants in the case of international armed conflicts will be discussed. As we will see later the rights of private individuals and combatants depend on the characterization of the armed conflict.

What are the rights of combatants?

Any individuals participating in the armed force are seen as combatants. Combatants can be the object of lethal force at ‘all times and in all circumstances’. In times of armed conflict parties in the dispute are free to take combatants as prisoners without prosecution. A distinction can be made between combatants who are legally taking part in the hostilities and those that are doing so in an unlawful manner. A lawful combatant is offered combatants privilege, which mean the individual will not be prosecuted for partaking. This privilege is not awarded to the unlawful combatant. To be recognized as a lawful combatant several categories exist. First, members of the armed forces of a state as well as members of militias or volunteer corps forming part of such forces´ are considered to be lawful combatants. The second category consists of ´members of other militias and members of other volunteer corps, including those of organized resistance movements´. There must be a recognizable leader who claims responsibility. The third category is made up of inhabitants who spontaneously take up arms in response to invading forces.

What are the rights of civilians?

All individuals who are not considered to be combatants are automatically considered to be civilians. As discussed before, civilians cannot be the subject of military attacks unless they actively take part in the armed conflict. In doubt a person has to be considered to be a civilian. A lot has been said and written about the fine line when a civilian does or does not partake in the hostilities. Three conditions are recognized: First, the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm). Second, there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation). Third, the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another.

14.5 What are the principles guiding the conduct of hostilities?

In 1996 the ICJ held that there are two principles that have to be taken into account in the case of the use of nuclear weapons: the principle of distinction and the prohibition against causing unnecessary suffering to combatants. The first principle, the principle of distinction means that the attackers have to make a distinction between combatants and private individuals. In other words there is a difference between civilian and military objects.

Article 52(2) prescribes that military objects are ‘objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’. In doubt an object should be marked as a civilian object. Article 51 further stipulates that indiscriminate attacks are prohibited. This does not mean however that collateral damage is prohibited. It just cannot be excessive in comparison to the military advantage.

The prohibition against causing unnecessary suffering on the other hand aims to limit unnecessary suffering by for example prohibiting the use of certain weapons, for example weapons that go beyond what is necessary. According to the ICJ weapons that cause ‘a harm greater than avoidable’.

The use of nuclear weapons is only compatible if it is used against a specific military objective without a large risk of collateral damage. An ongoing discussion is being held about attack drones and cyberwars.

14.6 What is the position of non-international armed conflict?

Historically the law of armed conflict was limited to international conflict. Recently, however, there has been a move towards a wider application also including non-international armed conflicts. The ICTY recently held that from a humanitarian point of view an armed conflict causes harm whether international or not and therefore the regulation of such conflicts should perhaps be unified. There remain some differences however, for example insurgents usually will not benefit from combatants privilege from a government’s point of view and as regards to partaking in hostilities. From an international point of view a civilian only loses protection for the time he/she is taking part. From a national point of view a member of an organized group can be targeted at all times even if the individual is not partaking in hostilities at that particular time.

14.7 What is the relationship between international humanitarian law and human rights law?

As discussed earlier there may be some doubt as to the applicability of human rights law in times of international armed conflicts. The ICJ held, that some parts of human rights law may apply whereas other parts of international humanitarian law may apply, in other words if possible there will be a coexistence of the two regulatory frameworks. In general, human rights law should be applied in light of international humanitarian law in times of armed conflicts. Sometimes they may conflict however, particularly in relation to detention and use of deadly force. This conflict is even more profound in times of non-international armed conflict in which area very little treaties exist. Different courts taken different approaches to this issue. The US Supreme Court has held in the past that the gap formed by the lack of non-international treaties can be filled by international customary law.

What is international criminal law? - Chapter 15 (1)

15.1 Introduction

One of the most recent additions to international law is international criminal law. It aims to fill certain holes in international law and to make sure that criminals can be held liable for their conduct one way or the other. Either before national or international courts. Examples of the jurisdiction of international courts are crimes such as: genocide, crimes against humanity, war crimes and aggression (all under customary international law). As we will see in this chapter it is not uncommon for national prosecutors to use principles and offences from international law. International law may furthermore, oblige national prosecutors to prosecute or extradite the committers of certain crimes.

15.2 What are the sources of international criminal law?

The most important sources of international criminal law are treaties, for example: the 1949 Geneva Conventions, the 1948 Genocide Convention and the 1971 Montreal Convention for the Suppression of Unlawful Acts. Again, unsurprisingly, international customary law is one of the primary sources of international criminal law. This law is often used by national courts to classify a crime.

General principles of international law do apply as well, such as the ex post facto law principle which prescribes that an individual cannot be prosecuted for an act which at the time was not considered criminal.

15.3 How does the prosecution of international crimes before international courts work?

In this section international criminal courts will be discussed, then individual crimes, the issues concerning liability and possible defences will be discussed along with process guarantees and immunity.

What are the international criminal courts?

International criminal courts can be traced back to the ad-hoc court established by the London Charter in 1945. The IMT was concerned with the prosecution of war crimes. Another relevant court is the Tokyo International Military Tribunal, this court was responsible for example for guiding the processes against the Japanese for there deeds in the Second World War. Until 1993 no new courts were created, the UN security Council then created the ICTY for the prosecution of the war crimes committed in the Cold War, which indicted the former Yugoslavian president Milosevic. The next year the Security Council created the International Criminal Tribunal for Rwanda. For the war crimes committed in that country.

More recently the Council installed the International Residual Mechanism for Criminal Tribunals (IRMCT), this is meant to solve the tasks that the ICTY and the ICTR have started, nevertheless this does not mean the other tribunals will cease to exist. Other international courts are the Special Court for Sierra Leone (SCSL) and the Special Tribunal for Lebanon (STL)

What is the international criminal court (ICC)?

The international criminal courts mentioned above are all established with one specific purpose, the ICC on the other hand is meant for the ‘most serious crimes of international concern’ and is an ongoing court, with 124 parties, it is based in the Hague. It has three divisions: the Pre-Trial, Trial and Appeal division. The jurisdiction, as mentioned earlier, are crimes such as genocide, war crimes and crimes against humanity. In the recent future aggression in general will be added to this list. The Statute of the Court entered in force around the year 2002 and only crimes committed after that time fall within the ICC’s jurisdiction. Furthermore, it has no mandate to require national courts to refer cases to them. On the other hand according to the statute (article 13) it is allowed to investigate an issue upon its own initiative. Furthermore, the UN may refer cases to the Prosecutor. The position of the United States in this court is controversial. Some president offer their support (Clinton) whilst since Bush’s withdrawal the US has not been part of the ICC anymore. The tension in the ICC is fueled by African states because of the focus on African crimes.

How are crimes in international criminal law handled?

Crimes under international criminal law can be prosecuted regardless of the status of the crime under national law. The earlier mentioned list of crimes applied: genocide, crimes against humanity, war crimes and aggression. All four crimes will be discussed separately

What are genocides in international criminal law?

Genocide is punishable under customary international law as jus cogens crime. The element of conduct actus reus is important in this regard. Actus reus is sometimes called the external element or the objective element of a crime, it is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability. The actus reus element is the most common way of prosecuting genocides. The ICTY posed the definition as ‘physical or biological destruction of all or part of a group’ according to a ‘manifest pattern of similar conduct’. There must be some sort of organized effort to wipe out a certain group of individuals.

What are crimes against humanity in international criminal law?

Extermination, murder, enslavement deportation or forcible transfer of populations, imprisonment or other sever deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, sexual slavery, may all qualify as crimes against humanity. This is short non exhaustive list of example of crimes against humanity. Crimes against humanity are generally performed against any civilian population.

What are war crimes in international criminal law?

All international criminal courts have jurisdiction over war crimes, it is considered to be the ‘classic crime’. The ICTY held that a war crime ‘must constitute a breach of a rule protecting important values’. Although there is no list what constitutes such a breach it is generally a violation against human rights. This can in certain circumstances include national crimes.

What are acts of aggression in international criminal law?

The Nuremberg and Tokyo IMTs have characterized acts of aggression as a ‘crime against peace’. This was dubious decision because it was uncertain whether the acts were criminal at the time they were conducted. It was not until 2010 however, when the Rome Statute was entered that a new definition over the jurisdiction of this crime was installed. With this installment a higher threshold from acts of aggression was established, it is now defined as the ‘planning, preparation, initiation, or execution’ ’of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’. One can imagine that this would make the lives of international criminal courts quite busy. Therefore the crime is limited to acts by the head of states.

What is criminal liability in international criminal law?

Someone can be held liable for a crime if he/she (this is an example from article 2 of the Draft Code of Crimes against the Peace and Security of Mankind):

  1. Intentionally commits such a crime;

  2. Orders the commission of such a crime;

  3. Under certain circumstances fails to prevent or repress the crime;

  4. Knowingly aids, abets or otherwise assists in the commission of the crime;

  5. Directly participates in the planning or conspiring to commit the crime;

  6. Directly and publicly incites another individual to commit the crime which then in fact occurs; or

  7. Attempts to commit such a crime.

As can be deduced from the list above, the principle of superior responsibility applies, a superior is obliged to prevent the crimes of a subordinate. This can be an actual subordinate relationship or a practical one (effective control). Liability can also apply for groups of individuals although different requirements apply.

What are defences under international law?

Some exceptional circumstances may exclude criminal liability. Examples are: intoxication, self defence, or mental incapability. Whether the subordinate principle relationship can also be used as a defence is a controversial issue. After the Second World War there is some consensus that an obligation to disobey applies.

What are due process guarantees?

A fair trial has to be offered to those suspect of an international crime. All international courts adopted provisions to that end in their statutes, which are usually indirectly drawn from article 14 of the UN Covenant on Civil and Political Rights.

What is the concept of immunity as a procedural bar to prosecution before international criminal courts?

As we have seen in chapter 6, personal immunity can be offered to certain state representatives and consular. Nevertheless, immunity usually does not apply before international criminal law. It is however a necessary condition that a state has agreed to the jurisdiction of the international court to determine whether the Court has the jurisdiction to decide upon whether the state official has immunity or not. This consent need not be explicit.

15.4 How are national crimes prosecuted?

The main principle of international criminal law is that national crimes are prosecuted at a national level. However, it can happen as well that national courts of one country prosecute the nationals of another country for their crimes, in some cases special courts are installed for the prosecuting of certain crimes, examples are: the UN Transitional Administration in East Timor (UNTAET) and the International Crimes Tribunal in Kosovo. To ensure that all crimes are prosecuted at a national level many treaties and conventions exist. Most crimes can only be prosecuted within a limited time period, this is usually ten or twenty years. Furthermore, state officials can grant amnesty to a certain individual or a particular act when it decides that some acts are not unlawful anymore. These are forces under national law that can at times prevent the prosecution of all crimes as envisioned by international criminal law. To that end several treaties are installed to ensure the prosecution of all crimes. One example is the 1948 Genocide Convention, which prohibits amnesty in the case of genocide related crimes.

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Boeksamenvatting International Law - Klabbers - 1e druk

Boeksamenvatting International Law - Klabbers - 1e druk


Wat is de relevantie van internationaal recht? Een historisch overzicht - Chapter 1 

Inleiding

Van het recht op vrijheid van meningsuiting tot de compensatie van vertraging bij een internationale vlucht, een wereld zonder internationale rechtsregels is niet voor te stellen. Het internationaal recht heeft niet alleen betrekking op oorlog, vrede of mensenrechten, maar ook op handel en de bescherming van het milieu. Het uitgangspunt is dat het bestaan van internationale betrekkingen het bestaan van internationaal recht impliceert. Deze samenvatting geeft een overzicht van het internationaal publiekrecht, hetgeen de (rechts)betrekkingen tussen staten reguleert. Deze rechtsregels raken echter ook internationale organisaties, bedrijven en individuen.

Vroege geschiedenis internationaal recht

De geschiedenis van het moderne internationaal publiekrecht is te herleiden tot de zeventiende eeuw. Dit betekent niet dat er hiervoor geen internationale regels bestonden; oude Griekse steden sloten bijvoorbeeld al langer verdragen met elkaar. De zeventiende eeuw springt er echter om verschillende redenen uit. Een belangrijke ontwikkeling in deze periode is de Vrede van Westfalen in 1648, waarmee een einde kwam aan de Dertigjarige Oorlog. De gemaakte afspraken leidden ertoe dat Europa verdeeld werd in een aantal territoriale eenheden. Elke eenheid kon zelf beslissen welke religie zij aannam. Omdat bemoeienis van buitenaf niet was toegestaan, ontstonden er verschillende soevereine staten. Dit was het begin van het moderne staatsbestel.

De tweede belangrijke gebeurtenis in de zeventiende eeuw voor de ontwikkeling van het internationaal recht, was de publicatie van ‘On the Law of War and Peace’ in 1625 van Hugo de Groot. De Groot werd gezien als een toonaangevende intellectueel. Hij had veel invloed op de vorming van het internationale recht, met name met betrekking tot vrijheid van de zeeën. De theorie van De Groot – waar hieronder dieper op wordt ingegaan – was cruciaal voor de positie van Nederland en de Verengigde Oost-indische Compagnie (VOC). De Nederlandse vloot was op basis van het beginsel van de vrije zee gegarandeerd van een vrije scheepvaart. Andere landen, zoals Engeland en Spanje, werd het onmogelijk gemaakt om op legale wijze de macht te claimen in overzeese gebieden.

De relevantie van De Groot als een van de grondleggers van het internationaal publiekrecht kan niet worden ontkend. Zo vormde hij een brug tussen de klassieke ‘natuurlijke’ manier van denken en de ‘positieve’ denkwijze. In het eerste geval wordt ervan uitgegaan dat het recht niet wordt gemaakt, maar gevonden. Kenmerkend wordt gedacht dat het ‘recht’ is opgelegd door God. Positivisme gaat er daarentegen vanuit dat het recht niet is gegeven of door een hogere macht is opgelegd, maar dat het door de mens gemaakt. Recht is wat staten besluiten of overeenkomen dat recht is.
Mogelijk is De Groot een van de eerste denkers die het idee van een onderling verbonden internationale gemeenschap met een eigen rechtssysteem heeft ontwikkeld. In zijn publicatie werd ook de bindende kracht van verdragen en internationale verplichtingen besproken.

Imperialisme en kolonialisme

Zoals reeds aangestipt, is internationaal recht nauw verbonden met imperialisme en kolonialisme. De opkomst van het vroeg moderne internationale recht is niet los te zien van de moeite die het de Europese machten heeft gekost om invloed in andere delen van de wereld te verkrijgen. Het idee van de vrije zee gaf dan ook uitstekende condities voor ontdekkingsreizen en internationale handel, waardoor Nederland in een gunstige positie verkeerde. Deze vrijheden veronderstelden echter ook dat de betrekkingen met de inheemse bewoners van continenten als Afrika en Azië onderworpen waren aan bepaalde regels. Een van deze regels was dat gevonden overzeese gebieden geacht werden niet-soeverein te zijn en aan niemand toe te behoren (terra nullius). De Europese machten konden op basis van dit beginsel verkondigen dat ‘ontdekte’ gebieden aan hen toebehoorden. De belangen van de originele bewoners waren ondergeschikt, hoewel dezelfde bewoners van belang waren bij het maken van handelsovereenkomsten.

Een groot deel van de wereld werd het speelveld van Europese machten: op een gegeven moment was de niet-Europese wereld vrijwel helemaal verdeeld tussen twee van deze machten. De gebieden ten westen van de Atlantische Oceaan behoorden tot Spanje, terwijl Portugal sommige gebieden in het oosten claimde. Dit werd in 1494 bevestigd in het Verdrag van Tordesillas. De twee uitbreidende machten kwamen elkaar weer tegen in de Stille Oceaan, wat leidde dat het Verdrag van Saragossa in 1529. Aan het einde van de zestiende eeuw verschenen Engeland en Nederland als maritieme machten, waardoor de handelsmonopolies in de Indische Oceaan werden doorbroken en er een einde kwam aan de overheersing van Spanje en Portugal. De Nederlanders richtten in 1602 de VOC op en stelden daarmee hun positie vast. Een belangrijk verschil tussen de Spaanse en Portugese overheersing en de Nederlandse overheersing was dat de VOC gedelegeerd overheidsgezag uitoefende. Zij kon gebieden verkrijgen en besturen, de oorlog verklaren, verdragen sluiten en beslag leggen op buitenlandse schepen. In 1603 leidde dit tot een conflict met Portugal, toen de Nederlanders een Portugees schip in beslag namen. Om dit te legitimeren, werd De Groot gevraagd een wettelijk kader op te stellen. Dit deed hij, en in 1609 werd ‘Mare Liberum’ gepubliceerd. Hierin stelde hij dat open zeeën geen terra nullius waren (zoals de Spanjaarden en Portugezen aannamen), maar dat zij gemeenschappelijk eigendom waren en dus niet vatbaar voor inbezitneming en soevereiniteit. De Engelsen waren hierop tegen. Zij stonden erop dat er exclusieve rechten moesten zijn op de open zeeën rondom de Britse Eilanden. Zij waren dus voorstanders van het idee dat staten maritieme zones konden verkrijgen. Halverwege de zeventiende eeuw gingen de Nederlanders hiermee akkoord.

Internationaal recht speelde ook een rol bij de internationale slavenhandel. Hoewel het eerst was toegestaan, werd het in de negentiende eeuw geleidelijk aan verboden. De afschaffing van slavernij vond plaats voorafgaand aan de kolonisatie van Afrika.

Zoals blijkt uit bovenstaande, heeft het internationaal recht ook een economisch component. Denk bijvoorbeeld aan de oprichting van internationale organisaties als de World Trade Organisation (WTO) en het International Monetary Fund (IMF) en de verschillende regelingen voor het reguleren van de markten in producten als koffie en cacao. De Groot pleitte al eerder voor vrije handelsroutes, met name omdat vrije handel grote economische voordelen zou hebben.

De grenzen van territoriaal gezag bleef ook na deze periode een onderwerp van discussie. In de tweede helft van de twintigste eeuw zagen de meeste zaken van het Internationaal Gerechtshof (International Court of Justice; ICJ) op de precieze grenzen van territoriaal eigendom, zowel op land als op zee. Het vaststellen van deze grenzen was vooral interessant als er olie of gas werd gebonden. Ook hieruit blijkt het belang van internationaal recht.

In de laatste eeuwen heeft het internationale recht ook een strafrechtelijk aspect gekregen. In het internationaal strafrecht zijn de normadressaten echter individuen, niet staten. Staten kunnen niet naar de gevangenis worden gestuurd, maar individuen die in naam van de staat internationale misdrijven plegen wel.

Naleving internationaal recht

Het meest opmerkelijke kenmerk van internationaal recht is het ontbreken van één overkoepelende autoriteit. Hoe kan internationaal recht functioneren zonder soevereine autoriteit? Hoe worden de regels gemaakt als een wetgever ontbreekt en hoe kan het stelsel werken zonder een algemene politiemacht en openbare aanklagers? Staten, en in toenemende maten ook private partijen, lijken in beginsel echter het internationaal recht te willen implementeren en volgen. Een verklaring hiervoor is dat staten zich aan het internationaal recht zullen houden, omdat zij het zelf opstellen. De omstandigheden kunnen echter wijzigen, waardoor het meer dan eens voorkomt dat staten hun verplichtingen schenden. Dit is normaal gesproken echter niet aannemelijk. Een verklaring hiervoor is dat de implementatie en toepassing van het recht een zaak van gewoonte en routine is. Wanneer een wettelijke norm gedurende een bepaalde tijd wordt toegepast, zal dit niet zomaar veranderen. Tenzij er iets drastisch gebeurt, zoals een nieuw verdrag of een nieuwe uitspraak, zullen staten blijven doen wat zij gewend zijn te doen. Dit versterkt het internationale recht. Daarnaast spelen ook juristen een belangrijke rol. Zij zorgen ervoor dat (de autoriteit van) het recht gerespecteerd wordt. Een andere verklaring is de status van internationaal recht. Een regel van internationaal recht die in het algemeen beschouwd wordt als nuttig en op de juiste wijze tot stand is gekomen , zal worden gezien als rechtmatig. Staten hoeven er niet aan herinnerd te worden zich aan de regel te houden, zij zullen dit zelf ook willen, omdat dit rechtens juist is. Dit is vooral het normatief aspect van internationaal recht.

Een andere verklaring voor de naleving van internationaal recht is dat staten elkaar nodig hebben op het wereldtoneel. Staten staan voortdurend met elkaar in contact en zullen hun reputatie niet willen schenden. Niemand wil zaken doen met een staat die regelmatig zijn verplichtingen schendt. Dit wordt ook wel een sociale sanctie genoemd. Dit laatste geeft aan dat internationaal recht niet geheel sanctieloos is. Er is dan wel geen internationale politiemacht of rechter die staten op de vingers tikt, maar de sociale sanctie kan zwaar drukken. Daarnaast voorziet het internationale recht in een aantal reacties op schendingen van internationale verplichtingen. Het betreft maatregelen die genomen worden binnen de grenzen van het recht en de boodschap uitdragen dat een staat niet akkoord is met het gedrag van de ander. Voorbeelden hiervan zijn het oproepen van de ambassadeur voor een ‘overleg’ en het verbreken van diplomatieke betrekkingen. Dergelijke acties zenden een sterke politieke boodschap uit, zonder dat een internationale verplichting wordt geschonden. Dit was niet het geval bij de zogenaamde represailles, ook wel tegenmaatregelen genoemd. Dit zijn wettelijk ongeoorloofde maatregelen, welke toch als geoorloofd werden beschouwd als deze worden genomen als reactie op een onrechtmatige handeling van de andere staat. Als A bijvoorbeeld een verdrag schendt, dan mag B ditzelfde doen. Dit beginsel kwam aan bod bij een zaak tussen Nederland en België voor het Permanent Court of International Justice (PCIJ, de voorganger van het ICJ) in 1937. België stelde dat Nederland een verdragsverplichting had geschonden en dat zij daarom hetzelfde mocht doen. De rechter oordeelde dat deze reactionele opschorting van verplichtingen in beginsel gerechtvaardigd was, zodat het toepasbaar was in internationale betrekkingen. Een andere maatregel tegen het handelen van een andere staat is bijvoorbeeld zelfverdediging.

In het licht van bovenstaande, rijst de vraag of het internationaal recht bindend van aard is. Als het gedrag van een staat wordt beoordeeld, is het immers van belang of deze staat gebonden was aan de internationale regel of dat er slechts een regel uit de sociale praktijk is geschonden. De weigering van een staat om de rode loper uit te rollen voor een buitenlands staatshoofd leidt tot schending van een etiquette, maar zal niet aan de rechter worden voorgelegd. Er is immers geen internationale regel die hiertoe verplicht.

Nut en relevantie

Of men het internationaal recht nuttig acht, hangt af van de internationale politiek. Zo zien realisten het internationaal recht als irrelevant. Het internationale stelsel is een machtsstrijd tussen staten, waarbij staten alles zullen doen om hun eigenbelang te vergroten. Staten zullen internationaal recht alleen respecteren als zij hier zelf beter van worden en het links laten liggen als dit niet het geval is. Internationaal recht is volgens deze gedachte alleen relevant zolang het de belangen van een staat reflecteert en niet zal worden geschonden.

Volgens het liberale institutionalisme kan het internationale recht daarentegen wel relevant zijn, mits dit zo gevormd is dat hierbij rekening wordt gehouden met de drang naar macht van staten. Net zoals realisten, gaan ook zij ervan uit dat staten gedreven worden door eigenbelang. Internationaal recht kan echter nuttig zijn als het gaat om handel en investering. Wettelijke regels zorgen namelijk voor zekerheid en creëren stabiele verwachtingen. Rechtsregels kunnen helpen om transactiekosten te verminderen en alleen daarom al gunstig zijn en het eigenbelang van de staat dienen. Een lidstaat van de WTO hoeft zich bijvoorbeeld geen zorgen te maken over de nakoming van de verplichtingen van een andere lidstaat. Het lidmaatschap bij de WTO maakt internationale handel en buitenlandse investering daarmee gemakkelijker en beter voorspelbaar, hetgeen economische vooruitgang ten goede komt.

Een tussenvorm van realisme en liberaal institutionalisme is de wettelijke - en economische benadering. Hierbij gaat het dus niet om een politieke benadering. Economen gaan ervan uit dat staten rationele actoren zijn en dat een maximale winst hun hoofddoel is. Staten zijn daarom soms geneigd gemeenschappelijke regels aan te nemen, omdat dit kan leiden tot winstmaximalisatie. In andere omstandigheden kan een eenzijdig optreden echter de voorkeur hebben. Het is echter de vraag of staten wel altijd ‘rationeel’ handelen, en zo ja, of rationaliteit daadwerkelijk gepaard gaat met maximale winst. Daarnaast bestaat het risico dat een economische benadering de normatieve kant van het internationaal recht ondermijnt. Als het recht niet zorgt voor maximale winst, dan zou een andere route kunnen worden gekozen, bijvoorbeeld een die gepaard gaat met geweld.

De opkomst van globalisatie tegen het einde van de twintigste eeuw heeft de verhouding tussen internationaal recht en economie versterkt. Globalisatie ziet echter niet alleen op economie, maar ook op culturele en sociale betrekkingen. Globalisatie gaat samen met ‘global governance’. Dit vormt een uitdaging voor het internationale recht. Globalisatie en global governance werpen nieuwe gebieden op ter regulatie en dwingen internationaalrechtelijke juristen hun handelsinstrumenten te heroverwegen. De klassieke opvattingen en categorieën van internationaal recht zijn hiermee achterhaald. Internationaal recht kan alleen betekenis hebben als het zich aanpast aan de veranderende wereld, hetgeen een voortdurend proces is. Een voorbeeld hiervan is het debat rondom migratie.

Stampvragen

  • Noem een aantal belangrijke gebeurtenissen voor de totstandkoming van het Internationaal Recht

  • Wie is de grondlegger van het Internationaal recht en waarom?

  • Hoe kan het dat ondanks het feit dat het internationaal recht geen overkoepelende autoriteit heeft, het systeem toch lijkt te werken? Geef een aantal verklaringen.

  • Wat is het verschil tussen een regel van internationaal recht en een sociale regel?

  • Benader het internationaal recht vanuit verschillende politieke en economische perspectieven

  • Wat is het verband tussen internationaal recht en economie?

Hoe is het internationaal recht ontstaan? De rechtsregels - Chapter 2 

 

Internationaal recht is hoofdzakelijk gemaakt door staten. Het volgt uit de soevereiniteit van staten; er is geen bovengeschikte autoriteit. Dit betekent dat recht alleen kan worden gemaakt conform de wil van staten. Het wordt daarom ook wel gezegd dat internationaal recht gebaseerd is op een consensueel stelsel.

Er is geen specifiek document dat aangeeft hoe internationaal recht gemaakt wordt en er bestaat geen verdrag dat dit proces beschrijft. Het statuut van het ICJ geeft wel in artikel 38 een opsomming van instrumenten die het Hof kan toepassen in zaken die vragen oproepen. Artikel 38 wordt vaak gebruikt als beginpunt van een discussie over rechtsbronnen. De opsomming is niet limitatief, het is mogelijk dat er andere rechtsbronnen bestaan die niet genoemd worden in het artikel. Zo zouden bijvoorbeeld internationale organisaties recht kunnen maken, alhoewel dit oorspronkelijk gebaseerd zal zijn op een verdrag tussen staten. Daarnaast wordt er gediscussieerd over de rol van burgerlijke - en maatschappelijke organisaties zoals NGOs, over de vraag of staten ‘soft law’ kunnen maken en of recht kan ontstaan uit netwerken van ambtenaren en regelgevers.

De S.S. Lotus en de Wimbledon

De eerste belangrijke jurisprudentie over de territoriale jurisdictie van staten onstond naar aanleiding van het voorval van de S.S. Lotus. In 1926 botsten de Turkse stoomboot Boz-Kourt en de Franse Lotus op elkaar in de open zee, vlakbij de Turkse kust. Hierbij kwamen acht Turken om het leven. De Turkse regering initieerde een strafrechtelijke proces tegen de eerste officier van de Lotus – een Fransman – en de kapitein van de Turkse boot. Beiden werden schuldig bevonden door het strafgerecht van Istanbul en veroordeeld tot een gevangenisstraf en een geldboete. De Franse regering legde zich niet neer bij de veroordeling van een Franse onderdaan in Turkije, omdat Turkije niet zou beschikken over de vereiste jurisdictie voor het veroordelen van buitenlanders voor gedragen gepleegd buiten Turks grondgebied. De twee landen besloten de zaak aan het PCIJ voor te leggen, welke in 1927 een inmiddels klassieke uitspraak deed. De hoofdvraag die beantwoord diende te worden door het PCIJ luidde of Turkije door het instellen van een proces tegen de Franse officier in strijd had gehandeld met beginselen van internationaal recht. Het Hof gaf aan dat beperkingen wat betreft de onafhankelijkheid van staten niet konden worden aangenomen. In het internationaal recht kon geen verbod worden gevonden, zodat het Hof oordeelde

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